Opinion
No. 07-20-00195-CV
12-04-2020
IN THE INTEREST OF M.L., A CHILD
On Appeal from the 316th District Court Hutchinson County, Texas
Trial Court No. 43,682, Honorable James M. Mosley, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
In this accelerated appeal, appellant, Father, seeks reversal of the trial court's judgment terminating his parental rights to M.L. In two issues, Father asserts that the evidence is insufficient to support the trial court's predicate findings and the finding that termination is in the best interest of M.L. Finding no error, we affirm the judgment of the trial court.
To protect the privacy of the parties involved, we refer to the child by initials and to the parents of the child as "Mother" and "Father." See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2020); TEX. R. APP. P. 9.8(b).
Background
In January of 2019, the Texas Department of Family and Protective Services filed its petition for protection, conservatorship, and termination of parental rights of Mother and Father as to their ten-month-old daughter, M.L. M.L. and her three siblings were removed after the Department received a report that Mother and Father were using illegal drugs, and the oldest child in the home, fourteen-year-old M.J., was hospitalized after a drug overdose. There were also concerns of domestic violence in the home. The department investigator interviewed M.J. According to M.J., she found illegal drugs and paraphernalia in Father's belongings and she "attempted to overdose because of the conflict in the home going on with [Father]." As a part of the investigation, the Department requested that Father submit to a hair follicle drug test, but he declined.
Mother's parental rights were also terminated in this proceeding. Mother does not appeal.
Father is not a parent of M.L.'s three siblings. The father of these three children is deceased.
The Department developed a family service plan for Father, and the court ordered compliance with the plan requirements at a status hearing held in March. The service plan set out several tasks and services for Father to complete before reunification with M.L. could occur.
Father did not complete his family service plan because he was incarcerated beginning in August of 2019 continuing through the trial date in June of 2020. He did not participate in any services before he was incarcerated. Father failed to maintain a drug-free lifestyle, stable housing and employment, and he did not maintain regular contact with the Department. Father did not attend individual counseling, did not initiate his psychosocial assessment, failed to complete an Outreach, Screening, Assessment and Referral (OSAR) evaluation, and did not enroll in the Batterer's Intervention Prevention Program (BIPP). Before Father was incarcerated, he submitted to one drug screen as requested by the Department. After Father was incarcerated, he completed a portion of a parenting workbook that the Department sent him.
The Department presented evidence that Father received ten years' community supervision probation for the felony offense of possession of a controlled substance on December 13, 2018. While on supervision, Father admitted to using methamphetamine on February 4, 2019, and he tested positive for methamphetamine, amphetamine, and marijuana in the Department's drug screen on July 2. In August of 2019, Father was arrested on a motion to revoke his community supervision. Father pled true to nineteen violations of his community supervision including his illegal drug use. As a result of his plea, Father's probation was revoked, and he was sentenced to eight years in the Texas Department of Criminal Justice. Father was incarcerated and serving his sentence when the termination trial commenced on June 16, 2020.
Mother testified that she knew that Father was using methamphetamine while he was living with her and the children in January of 2019. Mother also testified that she and Father had physical altercations and that they "fought a lot, argued." During one argument between Mother and Father, M.J. intervened and sprayed pepper spray on Father.
M.L. was placed with a relative in Borger after her removal. M.L. is doing "incredibly well" in this placement and the placement is interested in adopting M.L. The relative has also taken steps to become licensed as a foster home.
The trial court terminated Father's parental rights on the grounds of endangering conditions, endangerment, failure to comply with a court order that established actions necessary to retain custody of the child, failure to complete a court-ordered substance abuse treatment program, and engaging in criminal conduct that led to his conviction, imprisonment, and inability to care for the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), and (O), (P), and (Q) (West Supp. 2020). The trial court also found that termination was in the best interest of M.L. See § 161.001(b)(2). The trial court appointed the Department as the managing conservator of M.L.
Further references to provisions of the Texas Family Code will be by reference to "section ___" or "§ ___."
Applicable Law
A parent's right to the "companionship, care, custody, and management" of his or her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, "the rights of natural parents are not absolute" and "[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may forfeit his or her parental rights by his or her acts or omissions, the primary focus of a termination suit is protection of the child's best interests. See id.
In a case to terminate parental rights under section 161.001 of the Family Code, the petitioner must establish, by clear and convincing evidence, that (1) the parent committed one or more of the enumerated acts or omissions justifying termination, and (2) termination is in the best interest of the child. § 161.001(b). Clear and convincing evidence is "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." § 101.007 (West 2019); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both elements must be established and 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 K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied). "Only one predicate finding under section 161.001[(b)](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d at 362. We will affirm the termination order if the evidence is both legally and factually sufficient to support any alleged statutory ground the trial court relied upon in terminating the parental rights if the evidence also establishes that termination is in the child's best interest. In re K.C.B., 280 S.W.3d at 894-95.
The clear and convincing evidence standard does not mean the evidence must negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall that the trier of fact has the authority to weigh the evidence, draw reasonable inferences therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the right to resolve credibility issues and conflicts within the evidence and may freely choose to believe all, part, or none of the testimony espoused by any particular witness. Id. Where conflicting evidence is present, the factfinder's determination on such matters is generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no writ).
The appellate court cannot weigh witness credibility issues that depend on demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript, the appellate court must defer to the factfinder's determinations, as long as those determinations are not themselves unreasonable. Id.
Standard of Review
When reviewing the legal sufficiency of the evidence in a termination case, the appellate court should look at all the evidence in the light most favorable to the trial court's 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. To give appropriate deference to the factfinder's conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been not credible, but we do not disregard undisputed facts. Id. Even evidence that does more than raise surmise or suspicion is not sufficient unless that evidence is capable of producing a firm belief or conviction that the allegation is true. In re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could have formed a firm belief or conviction that the matter that must be proven was true, then the evidence is legally insufficient and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. We must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the petitioner's allegations. Id. We must also consider whether disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. Id. If, in 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.
Analysis
Sufficiency of the Evidence Under Section 161.001(b)(1)(O)
The trial court terminated Father's parental rights to M.L. on the grounds set out in section 161.001(b)(1) (D), (E), (O), (P), and (Q). Only one statutory predicate ground is required to support termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d at 362. In his brief, Father acknowledges that he did not complete his court-ordered services and that his rights were subject to termination under subsection (O). As such, this ground is sufficient to support the trial court's findings for termination under section 161.001(b)(1)(O). Consequently, we overrule Father's first issue. However, in light of the Texas Supreme Court opinion in In re N.G., we also review the trial court's findings under section 161.001(b)(1)(D) and (E), because of the potential future consequences to Father's parental rights concerning a different child. In re N.G., 577 S.W.3d 230, 235-37 (Tex. 2019) (per curiam).
Sufficiency of the Evidence Under Section 161.001(b)(1)(D) and (E)
A trial court may order termination of a parent-child relationship if the court finds by clear and convincing evidence that a parent has knowingly placed or knowingly allowed a child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child and/or engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child. See § 161.001(b)(1)(D), (E). Both subsections (D) and (E) require proof of endangerment. To "endanger" means to expose the child to loss or injury or to jeopardize the child's emotional or physical health. Boyd, 727 S.W.2d at 533. A child is endangered when the environment creates a potential for danger that the parent is aware of but consciously disregards. J.S. v. Tex. Dep't of Family & Protective Servs., 511 S.W.3d 145,159 (Tex. App.—El Paso 2014, no pet.). Endanger means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, but it is not necessary that the conduct be directed at the child or that the child suffer injury. In re N.K., 399 S.W.3d 322, 330-31 (Tex. App.—Amarillo 2013, no pet.).
While both subsections (D) and (E) focus on endangerment, they differ regarding the source of the physical or emotional endangerment to the child. See In re B.S.T., 977 S.W.2d 481, 484 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Subsection (D) requires a showing that the environment in which the child is placed endangered the child's physical or emotional health. Doyle v. Tex. Dep't of Protective & Regulatory Servs., 16 S.W.3d 390, 394 (Tex. App.—El Paso 2000, pet. denied). Conduct of a parent or another person in the home can create an environment that endangers the physical and emotional well-being of a child as required for termination under subsection (D). In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no pet.). Inappropriate, abusive, or unlawful conduct by persons who live in the child's home or with whom the child is compelled to associate on a regular basis in his home is a part of the "conditions or surroundings" of the child's home under subsection (D). In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh'g). The factfinder may infer from past conduct endangering the child's well-being that similar conduct will recur if the child is returned to the parent. Id. Thus, subsection (D) addresses the child's surroundings and environment rather than parental misconduct, which is the subject of subsection (E). Doyle, 16 S.W.3d at 394.
Under subsection (E), the cause of the danger to the child must be the parent's conduct alone, as evidenced not only by the parent's actions, but also by the parent's omission or failure to act. In re M.J.M.L., 31 S.W.3d 347, 350-51 (Tex. App.—San Antonio 2000, pet. denied); Doyle, 16 S.W.3d at 395. To be relevant, the conduct does not have to have been directed at the child, nor must actual harm result to the child from the conduct. Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ). Additionally, termination under subsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. In re E.P.C., 381 S.W.3d 670, 683 (Tex. App.—Fort Worth 2012, no pet.). The specific danger to the child's well-being need not be established as an independent proposition, but may be inferred from parental misconduct. In re B.C.S., 479 S.W.3d 918, 926 (Tex. App.—El Paso 2015, no pet.). Because the evidence pertaining to subsections 161.001(b)(1)(D) and (E) is interrelated, we may conduct a consolidated review. In re M.R.J.M., 280 S.W.3d at 503.
Here, the Department presented evidence that Father pled guilty to possession of a controlled substance, and he was given community supervision probation less than a month before M.L. was removed from the home. During the first couple of months of his community supervision, on February 4, 2019, Father admitted to using methamphetamine. In July, he tested positive for methamphetamine, amphetamine, and marijuana. At trial, Mother testified that Father used illegal drugs in the home. A parent's ongoing drug abuse is conduct that subjects a child to a life of uncertainty and instability, which endangers the physical and emotional well-being of the child. See In re A.B., 125 S.W.3d 769, 777 (Tex. App.—Texarkana 2003, pet. denied). "A parent's continued drug use demonstrates an inability to provide for the child's emotional and physical needs and to provide a stable environment for the child." In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied) (citing In re F.A.R., No. 11-04-00014-CV, 2005 Tex. App. LEXIS 234, at *4 (Tex. App.—Eastland Jan. 13, 2005, no pet.) (mem. op.)).
The trial court also heard evidence concerning domestic violence in the home between Father and Mother. A parent's violent or abusive conduct can produce an environment that threatens a child's well-being. S.H.R. v. Dep't of Family & Protective Servs., 404 S.W.3d 612, 645 (Tex. App.—Houston [1st Dist.] 2012), aff'd by, In re S.M.R., 434 S.W.3d 576 (Tex. 2014) (Brown, J., dissenting). "Domestic violence, want of self[-]control, and propensity for violence may be considered as evidence of endangerment." In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
In addition, the trial court could have considered Father's failure to complete requirements of his court-ordered service plan as part of the endangering conduct analysis under subsection (E). In re N.M.L., No. 07-17-00310-CV, 2018 Tex. App. LEXIS 607, at *13 (Tex. App.—Amarillo Jan. 19, 2018, pet. denied) (mem. op.). The service plan required Father to participate in parenting classes and individual counseling to address personal issues surrounding the removal of M.L. Father was also required to participate in BIPP, but he failed to participate in this program. The trial court was free to conclude that Father would be unable to provide a safe and stable home environment for M.L. because of his lack of interest in participating in available resources designed to assist him in parenting M.L.
Having examined the entire record, we find that the trial court could reasonably form a firm belief or conviction that Father knowingly placed or knowingly allowed M.L. to remain in conditions or surroundings which endangered her physical or emotional well-being and engaged in conduct which endangered M.L.'s emotional and physical well-being. The same evidence is factually sufficient to support the trial court's affirmative finding.
In light of our conclusion regarding the trial court's findings on subsections (D), (E), and (O), we need not address the findings under subsections (P) or (Q). In re A.V., 113 S.W.3d at 362.
Best Interest of the Child
In his second issue, Father challenges the legal and factual sufficiency of the evidence supporting the best interest finding made under section 161.001(b)(2). A determination of best interest necessitates a focus on the child, not the parent. See In re B.C.S., 479 S.W.3d at 927. Appellate courts examine the entire record to decide what is in the best interest of the child. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child's best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
In assessing whether termination is in a child's best interest, the courts are guided by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These 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 these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the parent. Id. "[T]he State need not prove all of the factors as a condition precedent to parental termination, 'particularly if the evidence were undisputed that the parental relationship endangered the safety of the child.'" In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). We must also bear in mind that a child's need for permanence through the establishment of a stable, permanent home has been recognized as the paramount consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).
At the time of trial, M.L. was two years old and she was too young to express her desires. The trial court was free to consider whether the child was adequately cared for and whether the child had spent minimal time with Father. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The testimony indicates that M.L. has been in a relative placement for more than half of her life and that M.L. had spent minimal time with Father because of his incarceration.
The evidence showed that Father had not provided a stable home for M.L. Stability and permanence are paramount in the upbringing of children. Id. at 120. There is nothing in the record to indicate that Father had a specific plan to care for M.L. Moreover, Father has taken very little initiative in providing for M.L.'s emotional and financial needs. The relative placement demonstrated an ability to meet M.L.'s needs and provide her with a stable home environment. The trial court heard evidence that M.L. is doing well in her placement and the Department's plan for M.L. is adoption by her placement.
Father's continued incarceration subjects M.L. to a life of uncertainty and instability. A parent's imprisonment is a factor that may be considered in determining a child's best interest. In re R.P., No. 04-13-00313-CV, 2013 Tex. App. LEXIS 13119, at *9 (Tex. App.—San Antonio Oct. 23, 2013, no pet.) (mem. op.). The Department caseworker testified that Father was incarcerated in August of 2019, and that he was currently serving an eight-year prison sentence. Thus, it is likely that his limited interaction with M.L. would continue for the foreseeable future. See In re N.R.T., 338 S.W.3d at 677 (considering that appellants had "no meaningful contact with their daughter" when evaluating evidence relevant to best interest determination).
We conclude the evidence is legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of Father's parental rights is in the best interest of M.L. Issue two is overruled.
Conclusion
The judgment of the trial court terminating Father's parental rights is affirmed.
Judy C. Parker
Justice