Opinion
No. 04-17-00490-CV
01-03-2018
IN THE INTEREST OF I.C.G., a Child
MEMORANDUM OPINION
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-01392
Honorable Peter A. Sakai, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice AFFIRMED
This proceeding arises out of Cause No. 2016-PA-01392, styled In the Interest of I.C.G., a Child, pending in the 288th Judicial District Court, Bexar County, Texas, the Honorable Solomon J. Casseb III presiding. The termination order in this matter was signed by the Honorable Peter Sakai, presiding judge of the 225th Judicial District Court, Bexar County, Texas.
This is an accelerated appeal of the trial court's order terminating Appellant Dad's parental rights to his child, I.C.G. In his appeal, Dad contends the evidence is neither legally nor factually sufficient for the trial court to have found by clear and convincing evidence that terminating Dad's parental rights was in I.C.G.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2016). Because we conclude the evidence is legally and factually sufficient to support the trial court's finding, we affirm the trial court's order terminating Dad's parental rights to I.C.G.
FACTUAL AND PROCEDURAL BACKGROUND
On June 21, 2016, the Texas Department of Family and Protective Services received a referral for alleged physical abuse of one-year-old I.C.G., by her father. Dad was arrested for continuous violence on a family member and aggravated assault with a deadly weapon. Mom was observed to have a black right eye, bruises on both arms, both legs, and on her back.
After Mom refused to engage in a safety plan with the Department, on June 27, 2016, the Department filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. Following an emergency order, the Department was named temporary managing conservator of I.C.G. I.C.G. was placed in the home of her maternal grandparents. The trial court ordered Dad to comply with each requirement set out in the Department's service plan; Dad remained incarcerated throughout the pendency of the case.
After eleven months, and several permanency hearings, the trial court called the case for a final hearing on June 2, 2017. After considering the testimony of several witnesses, and the complete record, the trial court orally pronounced the termination of Dad's parental rights pursuant to Texas Family Code section 161.001(b)(1)(N) and (O), see TEX. FAM. CODE ANN. § 161.001(b)(1) (N), (O), and made further findings that termination of Dad's parental rights was in I.C.G.'s best interest pursuant to section 161.001(b)(2), see id. § 161.001(b)(2). The trial court named the Department as I.C.G.'s permanent managing conservator.
The pertinent section of Texas Family Code section 161.001(b)(1)(O) provides as follows:
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment;
TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O).
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.
The written termination order, however, signed on July 11, 2017, provides the statutory basis for termination of Dad's parental rights was only pursuant to Texas Family Code section 161.001(b)(1)(O), see TEX. FAM. CODE ANN. § 161.001(b)(1)(O). "When there is an inconsistency between a written judgment and an oral pronouncement of judgment, the written judgment controls." In re L.G.R., 498 S.W.3d 195, 206 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Thus, for purposes of statutory violations under section 161.001(b)(1), this court is limited to considering the trial court's finding on Dad's failure to comply with the court-ordered service plan, see TEX. FAM. CODE ANN. § 161.001(b)(1)(O), and not the trial court's oral pronouncement regarding Dad's constructive abandonment of I.C.G., see id. § 161.001(b)(1)(N).
In his sole issue on appeal, Dad contends the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights is in I.C.G.'s best interest.
STANDARDS OF REVIEW
"Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.—Corpus Christi 2006, no pet.)).
An order terminating parental rights must be supported by clear and convincing evidence that (1) the parent has committed one of the grounds for involuntary termination as listed in section 161.001(b)(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001; In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2003). "'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 (West 2014); J.F.C., 96 S.W.3d at 264.
"There is a strong presumption that the best interest of the child is served by keeping the child with [her] natural parent, and the burden is on [the Department] to rebut that presumption." In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). "The same evidence of acts or omissions used to establish grounds for termination under section 161.001[(b)](1) may be probative in determining the best interest of the child." Id.
A. Legal Sufficiency
When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "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.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting J.F.C., 96 S.W.3d at 266). If the court "determines that [a] 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 [sufficient]." See id. (quoting J.F.C., 96 S.W.3d at 266). This court must assume "the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. 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." J.F.C., 96 S.W.3d at 266.
B. Factual Sufficiency
Under a clear and convincing standard, evidence is factually sufficient if "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San Antonio 2004, no pet.). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266; accord C.H., 89 S.W.3d at 25. "If, in light of the entire record, [unless] 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, . . . the evidence is factually [sufficient]." J.F.C., 96 S.W.3d at 266.
TESTIMONY ELICITED DURING THE TERMINATION HEARING
Because only Dad appeals the termination of his parental rights, we limit our recitation of the facts accordingly.
A. Norma Rodriguez
Norma Rodriguez, the Department's caseworker since August of 2016, testified the Department placed eighteen-month-old I.C.G. with her maternal grandparents on June 24, 2016. The only medical intervention required was speech therapy, which I.C.G. received and to which she was responding well. Rodriguez averred that the Department's plan was for adoption with the maternal grandparents.
On cross-examination, Dad's attorney asked several questions regarding why Rodriguez had no direct contact with Dad. Rodriguez explained that Dad sent her a letter in October of 2016 requesting the Department allow his mother to act as his power of attorney and requested that Rodriguez contact his mother. Rodriguez testified that she remained in contact with the paternal grandmother through the entire proceeding; the paternal grandmother provided proof of Dad's completion of some parenting classes, a domestic violence class, and a chemical dependency class. Rodriguez testified that she also spoke to Dad's probation officer and a correctional officer during Dad's incarceration.
Rodriguez opined the Department was seeking termination based on Dad's failure to complete the service plan, specifically his lack of providing a safe and stable environment. Dad had been incarcerated, or in a lock-down facility, since June of 2016. Almost a year had passed since Dad had contact with I.C.G. Rodriguez explained that the paternal grandmother requested visitation with I.C.G., and Rodriguez arranged for visitation. Yet, neither the paternal grandmother nor Dad ever requested Rodriguez arrange visitation or contact between Dad and I.C.G. or any additional services for Dad.
B. Maternal Grandmother
I.C.G.'s maternal grandmother testified that I.C.G. was doing "fabulous." Although I.C.G. is still in speech therapy, her speech is vastly improved. The maternal grandmother explained that I.C.G. has three siblings, ages seventeen, fourteen, and twelve years, previously adopted by the maternal grandparents. The siblings adore I.C.G. and she adores them.
The maternal grandmother testified that neither parent can protect I.C.G. at this point. Neither parent has provided any support for I.C.G. and neither has written her letters. The maternal grandmother testified that she has personally witnessed the results of Dad's violence. Yet, she makes a point of taking I.C.G. to see the paternal grandparents approximately once a month and agreed to continue the relationship if the trial court opted to terminate Dad's parental rights. Finally, I.C.G.'s maternal grandmother testified that she and her husband hope to adopt I.C.G.
BASIS FOR TRIAL COURT'S TERMINATION
A. Statutory Violations under the Texas Family Code
The trial court found, by clear and convincing evidence, that Dad failed to comply with the provision of the court-ordered service plan and that such acts or omissions were grounds for termination under subparagraph (O) of section 161.001(b)(1). See TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O). On appeal, Dad does not challenge the trial court's statutory grounds findings.
B. Best Interest of the Child
1. Arguments of the Parties
Dad contends the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights is in I.C.G.'s best interest. See id. § 161.001(b)(2).
The State counters that Dad's past history of drug abuse and domestic violence are evidence of endangerment. Dad's past actions placed I.C.G. at risk and endangered her emotional and physical well-being; the trial court could reasonably infer similar future conduct. The evidence was legally and factually sufficient to support the trial court's best interest finding.
2. The Holley Factors and Texas Family Code section 263 .307(b)
Some factors used to ascertain the best interest of the child were set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
(1) the child's desires;
(2) the child's emotional and physical needs now and in the future;
(3) any 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 the individuals seeking custody to promote the best interest of the child;
(6) the plans for the child by the individuals or agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; andSee also In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors).
(9) any excuse for the parent's acts or omissions.
The Holley Court warned that "[t]his listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent." Holley, 544 S.W.2d at 372; accord E.N.C., 389 S.W.3d at 807 (describing the Holley factors as nonexclusive). "The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." C.H., 89 S.W.3d at 27. In fact, evidence of only one factor may be sufficient for a factfinder to reasonably form a firm belief or conviction that termination is in a child's best interest—especially when undisputed evidence shows that the parental relationship endangered the child's safety. See id.
In addition to consideration of the Holley factors, courts remain mindful that "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 re B.R., 456 S.W.3d 612, 615 (Tex. App.—San Antonio 2015, no pet.). There is also a strong presumption that keeping children with a parent is in the children's best interests. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). In determining whether a parent is willing and able to provide the children with a safe environment, courts should consider the following statutory factors set out in section 263.307(b) of the Code, which include the following:
(1) the children's ages 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 children;
(4) whether the children have been the victim of repeated harm after the initial report and intervention by the department;TEX. FAM. CODE ANN. § 263.307(b); see In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *4 (Tex. App.—San Antonio Apr. 29, 2015, no pet.) (mem. op.) (citing In re A.S., No. 04-14-00505-CV, 2014 WL 5839256, at *2 (Tex. App.—San Antonio Nov. 12, 2014, pet. denied) (mem. op.)); B.R., 456 S.W.3d at 616.
(5) whether the children are fearful of living in or returning to the home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the children's parent, other family members, or others who have access to the home;
(7) whether there is a history of abusive or assaultive conduct by the children's family or others who have access to the home;
(8) whether there is a history of substance abuse by the children's family or others who have access to the home;
(9) whether the perpetrator of the harm to the children is identified;
(10) the willingness and ability of the children'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 children's family to effect positive environmental and personal changes within a reasonable period of time;
(12) whether the children'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 children.
When determining the best interests of the children, a court "may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." B.R., 456 S.W.3d at 616 (citing In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied)). A factfinder may also measure a parent's future conduct by his or her past conduct to aid in determining whether termination of the parent-child relationship is in the best interests of the children. Id. Finally, the grounds on which the trial court granted termination, pursuant to section 161.001 of the Code, "may also be probative in determining the child[ren]'s best interest[s]; but the mere fact that an act or omission occurred in the past does not ipso facto prove that termination is currently in the child[ren]'s best interest[s]." In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (citation omitted).
Applying each standard of review, we examine the evidence pertaining to the best interest of I.C.G. See TEX. FAM. CODE ANN. § 161.001(b)(2); E.N.C., 384 S.W.3d at 807; J.F.C., 96 S.W.3d at 284. We remain mindful that the trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witnesses. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (requiring appellate deference to the factfinder's findings); City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
a. Ages, Vulnerabilities, and Desires of the Child
I.C.G. was only two-years-old at the time of trial. See TEX. FAM. CODE ANN. § 263.307(b)(1) (child's age and physical and mental vulnerabilities); Holley, 544 S.W.2d at 371-72. Although I.C.G. did not testify as to her desires, the trial court was entitled to consider testimony regarding I.C.G.'s current placement. I.C.G. was well cared for and bonded with her maternal grandparents and her three siblings. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.); In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
The trial court was also entitled to consider testimony concerning I.C.G.'s time spent with Dad, or lack thereof. See J.D., 436 S.W.3d at 108; U.P., 105 S.W.3d at 230. The record is silent regarding any relationship or bond between I.C.G. and Dad. Although the paternal grandparents have visited with I.C.G., Dad has been absent for almost half of I.C.G.'s life due to ongoing incarcerations. See TEX. FAM. CODE ANN. § 263.307(b)(3) (magnitude, frequency, and circumstances of harm to child); Holley, 544 S.W.2d at 371-72. The record reflects Dad was living with Mom and I.C.G. at the time of the referral and emergency removal. Yet, his actions were the basis of the referral. Dad was arrested and incarcerated; and, thus, he was removed from I.C.G.'s life. There was no testimony that I.C.G. asks for Dad or feels a void due to Dad's absence. Dad's absence from I.C.G.'s life is a result of Dad's conduct and will likely inhibit his ability to bond with I.C.G. See In re S.M.L., 171 S.W.3d 472, 478-79 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (indicating parent who was incarcerated at time of hearing and had past of criminal conduct will likely face incarceration again); see also TEX. FAM. CODE ANN. § 263.307(b)(3); Holley, 544 S.W.2d at 371-72.
b. Emotional and Physical Needs of the Child Now and in the Future, Emotional and Physical Danger to the Child Now and in the Future, and Willingness to Accept Services and Effect Positive Change
The record shows Dad was unable to meet I.C.G.'s physical and emotional needs when he exposed I.C.G. to domestic violence and assault-bodily injury. See TEX. FAM. CODE ANN. § 263.307(b)(3), (7) (history of abusive or assaultive conduct by child's family); Holley, 544 S.W.2d at 371-72. A parent's criminal background is particularly relevant if it demonstrates a tendency towards violence, especially violence against family members. See 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.) ("[D]omestic violence may constitute endangerment, even if the violence is not directed at the child.").
Although a parent's incarceration standing alone will not support an order of termination, it is an appropriate factor the trial court may consider when determining whether a parent engages in conduct that endangers a child's physical or emotional well-being. See In re M.C., 482 S.W.3d 675, 685 (Tex. App.—Texarkana 2016, pet. denied) ("[W]hile we recognize that imprisonment, standing alone, is not conduct which endangers the physical or emotional well-being of the child, intentional criminal activity which expose[s] the parent to incarceration is relevant evidence tending to establish a course of conduct endangering the emotional and physical well-being of the child.") (second alteration in original) (internal quotation marks omitted); In re B.C.S., 479 S.W.3d 918, 926 (Tex. App.—El Paso 2015, no pet.) ("Evidence of criminal conduct, convictions, and imprisonment and its effect on a parent's life and ability to parent may establish an endangering course of conduct."). Texas courts have repeatedly recognized that a parent's tendency towards violence, especially against family members, is relevant to the trial court's best interest determination. See D.N., 2016 WL 1407808, at *2; In re A.A., No. 06-14-00060-CV, 2014 WL 5421027, at *3 (Tex. App.—Texarkana Oct. 23, 2014, no pet.) (mem. op.) ("Domestic violence, want of self-control, and the propensity for violence may be considered as evidence of endangerment.").
c. Stability of the Home or Proposed Placement
"The stability of the proposed home environment is an important consideration in determining whether termination of parental rights is in the child's best interest." J.D., 436 S.W.3d at 119-20. A child's need for permanence through the establishment of a stable, permanent home is recognized as the paramount consideration in a best-interest determination. Id. at 120. ("Stability and permanence are paramount in the upbringing of children."). Here, the record indicates not only does Dad not have a definite release date, but no plan for caring for I.C.G. that would establish permanency. See TEX. FAM. CODE ANN. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72.
At the time of the hearing, Dad's counsel stated Dad should be released somewhere in the next thirty-to-ninety days, but he acknowledged the timeframe was simply an estimate on his part. The record is silent regarding any plans Dad had with respect to caring for I.C.G. or how Dad would support himself or if he had a support system waiting for him when he was released. See TEX. FAM. CODE ANN. § 263.307(b)(13) (whether adequate social system available); Holley, 544 S.W.2d at 371-72. To the contrary, the evidence clearly shows I.C.G.'s needs are being met by her maternal grandparents, who plan to adopt her and she will remain a part of her siblings' family. See In re M.A.N.M., 75 S.W.3d 73, 77 (Tex. App.—San Antonio 2002, no pet.) (reiterating goal of establishing a stable and permanent home for a child as a compelling government interest).
C. Trial Court's Determination That Termination of Dad's Parental Rights Was in the Child's Best Interest
The trial court's conclusion regarding Dad's termination under section 161.001(b)(1)(O) is, in fact, probative in determining I.C.G.'s best interest. See C.H., 89 S.W.3d at 28 (holding the same evidence may be probative of both section 161.001(b)(1) grounds and best interest); O.N.H., 401 S.W.3d at 684.
The trial court heard from witnesses and also reviewed several reports filed with the court during the pendency of the case. In making its determination, the trial court must determine the child's best interest; above all, the court must consider the child's placement in a safe environment. See TEX. FAM. CODE ANN. § 263.307(a); B.R., 456 S.W.3d at 615.
Reviewing the evidence under the two sufficiency standards, and giving due consideration to evidence that the trial court could have reasonably found to be clear and convincing, we conclude the trial court could have formed a firm belief or conviction that terminating Dad's parental rights to I.C.G. was in I.C.G.'s best interest. See J.L., 163 S.W.3d at 85; J.F.C., 96 S.W.3d at 266; see also H.R.M., 209 S.W.3d at 108. Therefore, the evidence is legally and factually sufficient to support the trial court's order terminating Dad's parental rights. See J.F.C., 96 S.W.3d at 266; see also H.R.M., 209 S.W.3d at 108.
CONCLUSION
The trial court found Dad committed a statutory ground supporting termination of his parental rights, see TEX. FAM. CODE ANN. § 161.001(b)(1)(O), and that termination of his parental rights was in I.C.G.'s best interest, see id. § 161.001(b)(2).
Based on a review of the entire record, we conclude the evidence is legally and factually sufficient to support the trial court's finding, by clear and convincing evidence, that termination of Dad's parental rights to I.C.G. is in I.C.G.'s best interest. See id.
Accordingly, we overrule Dad's sole appellate issue regarding the trial court's termination of his parental rights.
Patricia O. Alvarez, Justice