Opinion
No. 05-20-00208-CV No. 05-20-00209-CV
05-13-2020
IN THE INTEREST OF R.L. AND A.L., MINOR CHILDREN & IN THE INTEREST OF L.E.C., MINOR CHILD
On Appeal from the 303rd Judicial District Court Dallas County, Texas
Trial Court Cause Nos. DF-18-20752 and DF-08-06559
MEMORANDUM OPINION
Before Justices Partida-Kipness, Nowell, and Evans
Opinion by Justice Nowell
Mother appeals two decrees terminating her parental rights. In one decree, trial court cause number DF-08-06559 (appellate cause number 05-20-00209-CV), the trial court terminated Mother's parental rights to her oldest child, L.E.C. In the other, trial court cause number DF-18-20752 (appellate cause number 05-20-00208-CV), the trial court terminated Mother's parental rights to her younger two children, R.L. and A.L. Because the cases were tried together and Mother presents the same issue on appeal in both cases, we resolve the two appeals together in one opinion.
Following a two-day bench trial, the trial court found clear and convincing evidence supporting termination of Mother's parental rights under Texas Family Code section 161.001(b)(1)(E), (O), and (P), see TEX. FAM. CODE § 161.001(b)(1) (E), (O), (P), and found termination was in each child's best interest, see id. § 161.001(b)(2). Mother does not challenge the findings under subsections (E), (O), and (P). Rather, in a single issue, Mother argues the evidence is factually insufficient to show that termination of her parental rights is in the best interest of her children. She asserts rather than termination of her parental rights, the Department should have Permanent Managing Conservatorship of the children and her mother, the children's grandmother, should have Permanent Possessory Conservatorship. After reviewing the record from the trial court, we conclude the evidence is factually sufficient. We affirm the trial court's decrees of termination.
FACTUAL BACKGROUND
At the time of trial in December 2019, Mother had three children: L.E.C. (fourteen years old), R.L. (thirteen years old), and A.L. (eleven years old). The Department of Family and Protective Services (Department) was contacted in June 2018 when Mother was arrested for domestic violence after a physical altercation with her ex-boyfriend.
Mother used drugs throughout the course of this case; she testified she has been under the influence of drugs and alcohol while caring for her children, and she continued using drugs after the children were removed from her home. In the summer of 2018, Mother told the Department's investigator she used marijuana "as often as I could." In August 2018, Mother tested positive for marijuana and cocaine. Mother completed inpatient drug treatment in August or September 2019 and outpatient treatment in October 2019. However, she tested positive for cocaine in October 2019 and December 2019, the week before trial.
1. Placement with Maddie Tyree
In the summer of 2018, the Department placed the children with Maddie Tyree, a woman who was dating and had a child with Mother's brother; Mother did not object to the placement. At the time of trial, the children had lived with Tyree and Tyree's four biological children in her apartment in Fort Worth for eighteen months. Tyree testified she wanted the children to stay with her and was willing to be a permanent placement. She is employed full time and able to financially care for the children.
She testified the children are doing "very wonderfully." The girls have been doing "really, really well" in school, they attend weekly counseling, and they have not had any behavior problems. She testified:
These girls have come a long way from the time sitting in counseling, listening to the stories to hearing them cry to watching them grow into beautiful young women to watch them just - - just put they [sic] problems aside and do what's best and show themselves like no matter what we went through, we [are] still making the best.Tyree believed it would be in the children's best interest to remain in her home.
[R.L.], she was struggling at first, but now she's changed tremendously. They're awesome young girls and they just want to live their life [sic].
Jazmin Brooks, the Department's assigned caseworker, testified she observed the children in Tyree's home and described the relationships: "The girls all have a strong bond with Ms. Tyree. They feel like they can open up and speak to her and communicate with her and they say she's like a mother figure to them." The children did not have any significant behavioral issues or academic challenges while living with Tyree, and Tyree was able to meet the children's needs. The children indicated they would like to reside with Tyree, and Brooks had no concerns with the children remaining in her home. She testified the children are "bonded and stable in their current placement. They have been there for 18 months. They are in schools - - very good schools, very good programs."
Eduardo Villanueava, the CASA supervisor assigned to the children, observed the children in Tyree's home. Regarding school, he testified:
They're doing very well in each of their schools. They enjoy going to school. The girls are thriving just from since the beginning of the case to now you see so much improvement in them. They're very well-adjusted. They're happy. They love joking around. . . . It is just a joy to see how far they have come.Villanueava recommended the children remain with Tyree and have continued communication and supervised visits with Mother. He testified the "girls want to be adopted when we have conversations, so it's in their best interest to have permanency." The girls have not indicated they want to live with their grandmother.
D'Borris Robinson-Elliot is Mother's brother who previously lived with Tyree with whom he had a four-year-old child. He testified when Tyree is working, the children are at home alone and must care for the youngest child. The house is not clean, and the girls only bathe twice a week.
2. Visitation & Grandmother's Home
At the time of trial, Mother was entitled to visitation with the children every-other weekend; Mother's mother (Grandmother) was responsible for supervising the visits. Grandmother, who lived in Dallas, would pick up the children from Tyree's apartment in Fort Worth, and the children would spend one or two nights at Grandmother's house. Mother lived a few miles from Grandmother.
The children told Brooks they did not want to go to Grandmother's house for visitation; Tyree also testified the children sometimes did not want to go to Grandmother's house. Mother believed the children were told they were not required to go for visitation. Although the children expressed a desire not to go to Grandmother's house for the weekend, Mother wanted them to reside with Grandmother permanently.
The Department was concerned Grandmother might allow Mother or other unsafe family members to have unsupervised visits. Grandmother testified she believes Mother should have unsupervised visits with the children. Grandmother did not know Mother tested positive for drug use shortly before trial and, even after being informed Mother tested positive for cocaine, she still believed Mother should have unsupervised visits with the children. She testified she knows Mother "would never do drugs around me or her children."
Grandmother testified she wanted the children to live with her rather than Tyree. She is employed full time, owns a three-bedroom home in Dallas where she lives alone, and can provide for the children financially. She is concerned that at Tyree's house the girls do not bathe because, when she picks them up, "they are dirty, smelly, their hair is not combed and I have to make them go take a bath and buy them clothes."
3. Children's Desires
The trial court judge spoke to each of the children individually. A.L., age 11, told the trial judge:
I just want to stay with [Tyree]. I don't want to go no where. . . . Because I like the life that I'm living now [sic] than I was living before. And because, like, we get a lot of stuff. . . . And then I call her my mom because that - - she acts like how a mom supposed [sic] to be. And because her daughters and stuff, they already want us to stay and stuff and I already call them my sisters and brothers. And my baby cousin, she already [sic] calling us her sisters even though it's still our cousin. But she acts like she's our sister and she acts like we are her sisters.A.L. reiterated: "I want to stay with Aunt Mattie" and, if she could not, then "I would be depressed and cry all day. . . . Because I like my new life that I'm at right now and I'm happy and I'm too close with her children than I ever been with anybody." A.L. continued:
. . . .
I don't want to live with my granny. I just want to stay with Aunt Mattie because we already made a lot of plans and stuff.
The way my life was before is like sharing rooms with [R.L.], which is my sister, having, like, cheap stuff. Like - - well, some was cheap, some was not. And not getting a lot of stuff we wanted for Christmas. Seeing my mom get beat and seeing her acting not good, seeing her doing a lot of drugs and stuff and Aunt Mattie, she don't do none of that. She cooks and everything. She go out shopping. She don't leave us by ourselves. She tell us what is supposed to be told and what not supposed to be told.
A.L. told the judge she saw Mother arguing and fighting with her ex-boyfriend. "I saw her trying to stab him. I also saw them two fighting and hitting each other." Mother's ex-boyfriend would try to break into their home each time Mother locked him out. She also saw Mother "sniffing stuff," using "straws" and "powders." Mother would stay out until late at night.
A.L. told the judge that L.E.C. wanted to live with Grandmother and not Tyree, but "sometimes [L.E.C.], she will, you know, not tell the truth because she don't know which direction to go."
L.E.C., age 14, witnessed Mother's physical altercation with Mother's ex-boyfriend. She saw the man chase Mother and attempt to hit her with a piece of wood or a brick. The man was then "choking my mom and she was stabbing him." Her sisters were at Tyree's house when this occurred.
L.E.C. told the judge: "My feelings about getting adopted are kind of weird, but at the end of the day I still get why I have to be adopted." She continued:
I don't know because my feelings are all over the place. I feel like I don't know the word for it, confused, because I want to be with
my Aunt Mattie, but I want to be with my mom and my granny, but I want nothing to do with my uncle at all. He messed up that relationship a long time ago.
. . . .
Me and my grandmother have a great relationship. I like to say that I grew up with my grandma. My grandma took care of me since I was a baby, I like to say that. I used to live with my grandma and my papa and it was me, my grandma and papa and my big cousin and we used to live together. . . . yeah my grandma raised me.
. . . .
I'm just confused. I don't know. I don't know who I want to live with or anything so I'm confused.
R.L. told the judge that Mother and her ex-boyfriend fought a lot; "They fist fight a lot in front of us." She saw him punch her mom in the face, which made her feel unsafe: "Because he could hurt her and then hurt us too." She believes [L.E.C.] is Grandmother's favorite and said she and A.L. did not want to live with Grandmother. R.L. said she has a "good" relationship with Mother, but does not talk to her mother about her feelings because "some of my feelings could hurt her feelings." She sometimes calls Tyree her "momma."
4. Mother's Desires
Mother testified she understood the trial court would not award possession of the children to her while she was using drugs. She loves her children "dearly," cares about them, and worries about them "[a]ll the time." She wants to continue to be the parent even if she could only have supervised visitation.
Mother believes the children are happy living with Tyree and agreed Tyree has done a good job taking care of the girls. She knows her children do not want to go to Grandmother's house for visitation, but believes this is because Grandmother's house has rules, regulations, boundaries, and "they will have to do way better than they have been doing in school in Fort Worth." Mother testified the girls are doing well in school, but could do better. For example, L.E. C. nearly failed classes and R.L. skipped class, but that issue was resolved. She testified they love Grandmother and love Tyree. Mother requested the court place the children with Grandmother.
5. Counseling and Other Services
After Mother was released from jail, she began seeing Pamela Slater, a licensed professional counselor, as part of her family services plan. The objectives of the counseling were relapse prevention, coping skills development, parent training, and mood stabilization. Mother told Slater she was in a sexually violent relationship with L.E.C.'s father; Mother has been a victim of domestic violence in other relationships as well. Slater testified Mother remained in the abusive relationship with L.E.C.'s father after the children were removed from her custody.
Initially Mother attended counseling as prescribed. However, in the late summer of 2019, for approximately three months, Mother stopped attending counseling because she relapsed and became depressed. However, during this time, Mother received inpatient and subsequently full-day outpatient treatment for drug addiction. Mother resumed working with Slater in late-November 2019, approximately three weeks before trial.
Slater stated Mother made progress toward her goals, particularly stress management. Slater testified: "talking about her feelings as a coping skill rather than keeping them inside, doing things with her children that she enjoys is very much something that helps her."
Mother told Slater on multiple occasions that she did not want to lose her children. She has a genuine interest in continuing as a parent. However, at the time of trial, Slater did not think it would be advisable to place the children with Mother.
Brooks testified Mother completed all of her services (psychiatric evaluation, psychological evaluation, parenting classes, drug assessment, and drug treatment) except counseling, which was ongoing.
LAW & ANALYSIS
Because terminating parental rights implicates fundamental interests, the clear and convincing standard of proof applies in termination cases. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014); see also In re G.A.L., No. 05-19-00844-CV, 2020 WL 582282, at *2 (Tex. App.—Dallas Feb. 6, 2020, no pet.) (mem. op.). Clear and convincing evidence is the measure or degree of proof that will produce in the factfinder's mind a firm belief or conviction as to the truth of the matter to be proved. TEX. FAM. CODE § 101.007. Our factual sufficiency standard of review reflects the elevated standard of proof. In re N.T., 474 S.W.3d 465, 475 (Tex. App.—Dallas 2015, no pet.). In a factual sufficiency review, we consider all the evidence and defer to the factfinder's determinations as to witness credibility. Id.; see also In re G.A.L., 2020 WL 582282, at *2.
In a factual sufficiency review, we determine whether the factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). "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. at 503. We must undertake an exacting review of the entire record with a healthy regard for the constitutional interests at stake. Id. However, our review "must not be so rigorous that the only factfindings that could withstand review are those established beyond a reasonable doubt." In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
The trial court may terminate the parent-child relationship if the factfinder finds by clear and convincing evidence that (i) the parent committed one or more acts or omissions enumerated in section 161.001(b)(1) of the family code and (ii) termination is in the child's best interest. TEX. FAM. CODE § 161.001(b). Although there is a strong presumption that maintaining the parent-child relationship serves the child's best interest, there is also a presumption that promptly and permanently placing the child in a safe environment is in the child's best interest. In re D.W., 445 S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet. denied); see also In re G.A.L., 2020 WL 582282, at *3.
The supreme court has identified a nonexclusive list of factors that may be relevant to a best-interest determination, depending on the facts: (i) the child's desires, (ii) the child's current and future emotional and physical needs, (iii) current and future emotional and physical dangers to the child, (iv) the parental abilities of those seeking custody, (v) the programs available to help those individuals promote the child's best interest, (vi) those individuals' plans for the child, (vii) the home's or proposed placement's stability, (viii) the parent's acts or omissions indicating that the existing 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).
An absence of evidence of some Holley factors does not preclude a finding that termination is in the child's best interest, particularly if undisputed evidence shows that the parental relationship endangered the child's safety. In re N.T., 474 S.W.3d at 477; see also In re G.A.L., 2020 WL 582282, at *3. On the other hand, paltry evidence relevant to each Holley factor does not suffice to support a finding that termination is in the child's best interest. See In re C.H., 89 S.W.3d at 27; see also In re G.A.L., 2020 WL 582282, at *3.
On appeal, Mother does not challenge the evidence supporting a specific Holley factor. Rather, she reiterates the position she took at trial: because of her drug addiction, the Department should have Permanent Managing Conservatorship of the children, Grandmother should have Permanent Possessory Conservatorship, and she should be permitted to visit the children. Additionally, she argues there is no evidence the children were in adoptive placement or, given the children's ages, the children were adoptable
The evidence shows the children were removed from Mother's care when Mother was involved in a domestic violence incident with her then-boyfriend; Mother continued to be in a relationship with him after she was released from jail and the children were removed from her care. At least two of the children witnessed the abuse between Mother and her ex-boyfriend.
The evidence shows Mother used drugs throughout the tenure of this case, including after she completed substance abuse treatment. In the summer of 2018, Mother told the investigator she used marijuana as frequently as possible. Approximately one week before trial, Mother tested positive for cocaine. Mother had several positive drug tests in the intervening time period. At least one child saw Mother using drugs before being removed from Mother's care, and Mother admitted to being under the influence while caring for her children.
The children were placed with Tyree eighteen months before trial and remained in her care at the time of trial; Tyree wanted the children to continue living with her. There is no indication her home lacks stability or presents dangers to the children. There is conflicting evidence about whether Tyree could meet the children's emotional and physical needs and her parenting abilities. Tyree testified she works full time and earns enough money to take care of her biological children as well as L.E.C., R.L. and A.L. She rents a two-bedroom apartment. She explained the children are doing "very wonderfully," excelling in school, and progressing in counseling. She believed it would be in their best interest to remain in her home. Tyree's testimony was supported by Brooks' analysis that the children are bonded to Tyree and see her as a mother figure; the children did not have any significant behavior issues or academic challenges while living with Tyree; and Tyree was able to meet the children's needs. Villanueava also testified the girls were thriving, improving, happy, well-adjusted. However, Grandmother expressed concern Tyree did not require the children to bathe consistently and Robinson-Elliot testified the children are left alone when Tyree is working.
The evidence shows Grandmother can meet the children's physical needs as she is employed full time and owns a three-bedroom house where she lives alone. However, the Department expressed concerns that Grandmother might allow Mother or other unsafe relatives to have unsupervised visits. This concern was consistent with Grandmother's testimony that she thinks Mother should have unsupervised visits with the children. Grandmother did not know Mother tested positive for drug use shortly before trial and, even after being informed Mother tested positive for cocaine, she still believed Mother should have unsupervised visits at Grandmother's house with the children. She testified she knows her "daughter would never do drugs around me or her children." However, there is evidence Mother used drugs in front of her children in the past and had been under the influence when caring for the children.
A.L. was the only child to expressly state she wanted to live with Tyree, and none of the children stated she did not want to live with Tyree. None of the children stated she wanted to live with Grandmother. L.E.C. expressed mixed emotions and R.L. only stated she sometimes called Tyree "momma" and liked that she could talk to Tyree about her feelings. Brooks testified the children wanted to reside with Tyree, and Brooks had no concerns with the children remaining in her home. She testified the children are bonded and stable in their current placement.
Mother testified she knew the children could not live with her while she continued using drugs. The Department did not believe it would be in the children's best interest to return to Mother, and the Department was concerned about the children being with Grandmother. The Department believed Mother remained in the abusive relationship she was in when she was arrested in 2018. Even after completing court-ordered substance abuse treatment, Mother continued to abuse cocaine. The Department desired the children remain with Tyree who was in the best possible financial position to care for them. Tyree also believed it was in the children's best interest to remain with her.
Having reviewed the entire record, we conclude the evidence is factually sufficient to support the trial court's finding by clear and convincing evidence that termination was in each of the children's best interest. We overrule Mother's sole issue.
CONCLUSION
We affirm the trial court's decrees of termination.
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE 200208F.P05
JUDGMENT
On Appeal from the 303rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-18-20752.
Opinion delivered by Justice Nowell. Justices Partida-Kipness and Evans participating.
In accordance with this Court's opinion of this date, the trial court's decree of termination is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered this 13th day of May, 2020.
JUDGMENT
On Appeal from the 303rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-08-06559.
Opinion delivered by Justice Nowell. Justices Partida-Kipness and Evans participating.
In accordance with this Court's opinion of this date, the trial court's decree of termination is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered this 13th day of May, 2020.