Opinion
04-21-00527-CV
03-30-2022
IN THE INTEREST OF J.D.U., J.M.U., and A.K.U., Children
From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2020PA01098 Honorable Kimberly Burley, Judge Presiding
The Honorable Laura Salinas is the presiding judge of the 166th Judicial District Court. The Honorable Kimberly Burley signed the order of termination.
Luz Elena D. Chapa, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Luz Elena D. Chapa, Justice
AFFIRMED
Appellant L.G.C. appeals the trial court's order terminating her parental rights to her children, J.D.U., J.M.U., and A.K.U. On appeal, L.G.C. argues the evidence is legally and factually insufficient to support the trial court's best-interest finding. We affirm the trial court's order of termination.
To protect the identities of the minor children in this appeal, we refer to the parent and children by their initials. See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Background
On June 2, 2020, the Texas Department of Family and Protective Services filed an original petition seeking temporary managing conservatorship of three children, J.D.U., J.M.U., and A.K.U., and termination of L.G.C.'s parental rights to these children. The record shows the Department had removed the children from L.G.C.'s care after receiving multiple referrals. One of the referrals stated L.G.C. was sexually abusing the children and taking inappropriate pictures with them; another referral stated the children's father, E.U., sexually assaulted L.G.C. in front of the children. The Department investigated the referrals and discovered a history of ongoing family violence existed between L.G.C. and E.U., causing the children to live in an unsafe environment.
The Department also sought termination of the children's father's parental rights, and his rights were ultimately terminated. He did not file a notice of appeal challenging the trial court's order of termination, and as a result, he is not a party to this appeal.
The trial court signed an emergency order authorizing the Department to remove the children from their home and place them with their paternal grandfather. The order also named the Department temporary managing conservator and set the case for a full adversary hearing. A full adversary hearing occurred on June 16, 2020, and the trial court ordered L.G.C. to complete a psychological evaluation, attend and complete counseling and parenting classes, and participate in drug assessments and testing. The trial court also ordered no contact between E.U. and L.G.C. In addition to the no contact order issued by the trial court, the record indicates L.G.C. pursued a protective order against E.U., which the court entered in December 2020. Despite these orders, L.G.C. continued her relationship with E.U., and the Department pursued termination of her parental rights.
The case proceeded to a one-day bench trial on October 15, 2021. At the time of trial, the children were ages five, three, and one and living separately in two foster homes. The trial court heard testimony from two Department caseworkers, a Child Advocates San Antonio (CASA) volunteer, and L.G.C. After trial, the court found by clear and convincing evidence L.G.C. knowingly placed or allowed the children to remain in conditions endangering their physical or emotional well-being and failed to comply with court-ordered provisions of the family service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(D) & (O). The trial court also found by clear and convincing evidence termination of L.G.C.'s parental rights was in the children's best interest. See id. § 161.001(b)(2). L.G.C. now appeals, asserting the evidence is insufficient to support the trial court's best-interest finding.
Standard of Review and Applicable Law
Section 161.001 of the Family Code authorizes termination of a parent's parental rights only if the trial court finds by clear and convincing evidence one of the predicate grounds enumerated in subsection (b)(1) and termination is in a child's best interest. Id. § 161.001(b). Clear and convincing evidence requires "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. We apply a heightened standard of review to determine if this heightened burden of proof was met by judging whether 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). This standard guards the constitutional interests implicated by termination, while retaining the deference an appellate court must have for the factfinder's role. Id. at 23, 26. "[T]he trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony[, ]" so we must defer to its credibility determinations. In re J.M.G., 608 S.W.3d 51, 53-54 (Tex. App.-San Antonio 2020, pet. denied)
"When reviewing the sufficiency of the evidence, we apply the well-established [legal and factual sufficiency] standards." Id. at 53 (alteration in original) (quoting In re B.T.K., No. 04-19-00587-CV, 2020 WL 908022, at *2 (Tex. App.-San Antonio Feb. 26, 2020, no pet.) (mem. op.)). In our legal sufficiency review, we review the evidence in the light most favorable to the finding and disregard all evidence a reasonable factfinder could have disbelieved or found incredible. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We do not disregard undisputed evidence even if it does not support the trial court's finding. Id. In our factual sufficiency review, we consider the entire record and determine whether, in light of the entire record, any disputed evidence "is so significant that a factfinder could not reasonably have formed a firm belief or conviction" on the challenged finding. Id.
Determining whether termination of parental rights is in a child's best interest is a wide-ranging inquiry that involves a consideration of several factors set out by the Legislature and Supreme Court. In re Y.W., No. 04-17-00445-CV, 2017 WL 4801673, at *4 (Tex. App.-San Antonio Oct. 25, 2017, no pet.) (mem. op.). In section 263.307 of the Family Code, the Legislature adopted a list of factors to help determine whether a child's parent can provide the child with a safe environment. See Tex. Fam. Code Ann. § 263.307. Similarly, the Supreme Court has set out a non-exhaustive list known as the Holley factors to help a trial court make a best interest determination. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Not every factor must be proven for a court to find that termination is in the child's best interest. C.H., 89 S.W.3d at 27. "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." 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.).
These factors include: the child's age and physical and mental vulnerabilities; the frequency and nature of out-of-home placements; the magnitude, frequency, and circumstances of the harm to the child; whether the child has been the victim of repeated harm after intervention by the department; whether the child is fearful of returning to the child's home; 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; whether there is a history of abusive conduct by the child's family or others who have access to the child's home; whether there is a history of substance abuse by the child's family or others who have access to the child's home; 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; the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; whether the child's family demonstrates adequate parenting skills; and whether an adequate social support system consisting of an extended family and friends is available to the child. See Tex. Fam. Code § 263.307.
Those factors include: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future physical danger to the child; (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 held by the individuals seeking custody; (7) the stability of the home of the parent and the individuals seeking custody; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. See Holley, 544 S.W.2d at 371-72.
Discussion
L.G.C. argues the trial court's best-interest finding is legally and factually insufficient because the evidence shows L.G.C. is bonded with her children and completed her service plan. LG.C. further argues the Department failed to produce any evidence showing she would place her children in emotional or physical danger. We disagree.
Domestic Violence
Here, the Department produced considerable evidence showing L.G.C. exposed the children to an unsafe environment by subjecting them to ongoing episodes of domestic violence between herself and E.U. Department caseworker Cambrielle Gorham testified the Department's investigation revealed L.G.C. had a prior history with the Department due to the domestic violence between herself and E.U. Gorham stated in prior cases, the children remained with L.G.C. because she cooperated with the Department. Gorham then explained in this case, the Department removed the children from L.G.C.'s care after receiving a referral alleging E.U. cut off L.G.C.'s clothes in front of the children and sexually assaulted her. L.G.C. confirmed Gorham's testimony specifically testifying E.U. used a switchblade to remove her clothes and in the process, he cut her arm. L.G.C. told the trial court this incident occurred in front of her children, and she admitted the incident was scary for them. In addition, Gorham testified L.G.C. admitted other domestic violence incidents occurred between herself and E.U., and because of the violence, she obtained a protective order against E.U. after he threatened her with a gun and held her hostage.
Evidence of a parent's history of domestic violence supports a trial court's best-interest finding. In re A.H., No. 04-15-00416-CV, 2015 WL 7565569, at *7 (Tex. App.-San Antonio Nov. 25, 2015, no pet.) (mem. op.); see In re E.E.H., No. 04-16-00706-CV, 2016 WL 8609228, at *5 (Tex. App.-San Antonio March 29, 2016, no pet.) (mem. op.) (considering continuing episodes of domestic violence in best interest analysis). And as in this case, a parent's continued exposure to another parent's dangerous conduct is a relevant consideration in making a best interest determination. In re A.H., 2015 WL 7565569, at *7 (citing In re O.N.H., 401 S.W.3d 681, 684-85 (Tex. App.-San Antonio 2013, no pet.)). Based on the Department's evidence, the trial court could have reasonably concluded L.G.C.'s history of domestic violence with E.U. exposed the children to an unsafe environment against their best interest. See id. (holding parent's willingness to remain in violent relationship weighed against children's best interest).
L.G.C.'s Unwillingness to Effect Positive Change
The trial court also heard evidence indicating L.G.C. continued to remain in a relationship with E.U. in violation of the trial court's no contact and protective orders, despite the couple's domestic violence history. Evidence showing a parent's willingness to stay in an unhealthy relationship can support a trial court's best-interest determination since it demonstrates a parent's unwillingness to effect positive changes for a child. See In re E.E.H., 2016 WL 8609228, at *5; In re A.H., 2015 WL 7565569, at *7. Gorham testified she saw L.G.C. and E.U. together several times either at a nearby convenience store or at the bus stop after L.G.C. would visit the children. According to Gorham, E.U. would wait outside the building while L.G.C. visited the children and then they would wait together for the bus. On one occasion, E.U. was yelling at L.G.C. as she was walking out of the building, but they appeared to make up at the bus stop. Gorham also testified when she saw E.U. waiting for L.G.C., he appeared to be under the influence because his demeanor was erratic and he did not walk straight or speak without slurring. Gorham further told the court one of the children revealed E.U. was present during an overnight visit on July 7, 2021, causing her to confront L.G.C. about the status of their relationship. Gorham stated L.G.C. admitted to her she continued to have an ongoing relationship with E.U., and she was ten weeks pregnant at that time with E.U.'s child. Gorham opined she did not believe L.G.C. recognizes or acknowledges the threat E.U. poses to her and the children's safety. Department caseworker Kailee Thompson confirmed Gorham's testimony. Thompson testified between July 2021 and September 2021, she saw L.G.C. and E.U. sitting together and kissing at the bus stop after L.G.C. visited the children. Thompson testified E.U would walk with L.G.C. from the bus stop to the Department building where he would wait outside while L.G.C. visited the children. The trial court could have reasonably concluded this evidence weighs against L.G.C.'s ability to effect positive changes for the children and thus, was against the children's best interest. See In re A.H., 2015 WL 7565569, at *7 (concluding parent's willingness to remain in violent relationship constitute evidence of emotional and physical danger to the children in support of section 263.307 and Holley factors).
L.G.C.'s Noncompliance with the Service Plan
Although L.G.C. argues she completed her service plan, the Department produced evidence showing otherwise. The record shows the trial court ordered L.G.C. to complete a psychological evaluation, attend and complete counseling and parenting classes, and participate in drug assessments and testing. Gorham initially testified L.G.C. completed her service plan, but when specifically asked whether L.G.C. completed her counseling sessions, Gorham clarified, "To my knowledge, not at this point." Gorham testified the requirement for L.G.C. to complete counseling was a key component of the plan because it sought to address the underlying reasons why the Department brought the children into its care. However, L.G.C. did not complete counseling, and Gorham expressed concern regarding L.G.C.'s continuing relationship with E.U. despite the no contact and protective orders. "A parent's noncompliance with a service plan may be considered as evidence in favor of termination in the child's best interest." In re M.R., No. 02-19-00212-CV, 2019 WL 6606167, at *8 (Tex. App.-Fort Worth Dec. 5, 2019, pet. denied) (mem. op.). Accordingly, L.G.C.'s inability to complete her counseling sessions and address the underlying reasons leading to the children's removal weighs in favor of the trial court's best-interest finding. See id.
Needs and Plans for the Children
At the time of trial, the children were ages five, three, and one and would be in need of constant care and attention for many years due to their young ages. See In re J.G.M., No. 04-15-00423-CV, 2015 WL 6163204, at *3 (Tex. App.-San Antonio Oct. 21, 2015, no pet.) (mem. op.) (recognizing constant attention required to meet needs of young child). Gorham testified the children required basic needs including a stable and safe living environment, time, and love. She further specified the children deserved the right to live in an environment where they did not have to live in fear of witnessing domestic violence. Gorham continued, stating the children needed daily transportation to and from school, and one of the children required daily medication. According to Gorham, she did not believe L.G.C. could meet these needs because she continues to see E.U., lives in a hotel, and cannot meet the children's financial needs with her hotel job. Based on this evidence, the trial court could have reasonably determined L.G.C. could not meet the children's basic needs.
The trial court also heard evidence the children were living separately in two foster homes. The CASA volunteer testified she visits the children once a month in their foster homes where each of the children's needs are being met. She described her own interaction with the children as playful, bubbly, and active, and she stated the children did not interact very much with L.G.C. when L.G.C. visited them. Department caseworker Gorham echoed the CASA volunteer's description of the children by testifying the children are very smart, loving, and caring. She elaborated by explaining J.D.U. has "some behavioral issues, but nothing that's not controllable" and is a "very loving and caring child." She described J.M.U. as "gifted and talented" and learning above her grade level, and A.K.U. as very bonded to her siblings. She testified the children are doing well in their current placements, but the Department is focused on finding one home for them so they can remain together. Gorham explained the children were previously housed with a family who expressed interest in adopting them, but when the foster family believed the children would be reunified with L.G.C., the foster family asked for the children to be moved. Gorham stated the Department plans to contact this previous family to see if they are willing to adopt the children, and if not, then look for a new foster home where the children can remain housed together. This evidence is relevant to a trial court's best-interest finding, and the trial court could have reasonably concluded this evidence weighs in favor of termination given a foster family expressed interest in adopting the children. See In re C.H., 89 S.W.3d at 28 ("Evidence about placement plans and adoption are, of course, relevant to best interest."); In re O.N.H., 401 S.W.3d at 688 (pointing out evidence showing adoptive parents can be unwilling to commit when natural parents retain their parental rights weighs in favor of termination).
L.G.C.'s Testimony
The trial court also heard testimony from L.G.C. who testified she believed it was safe for her children to be around E.U. because he was seeing a psychiatrist and taking his medication. L.G.C. testified she did not want to apply for a protective order against E.U. in December 2020, but then she admitted numerous episodes of domestic violence occurred between the time the children were removed from her care in June 2020 until September 2021. She confirmed the children were removed from her care in June 2020 because E.U. cut off her clothes and stabbed her in front of them. L.G.C. further testified after the Department removed the children, she continued to see E.U. at a hotel room where she was living, and during that time, she became pregnant. She admitted E.U. pushed her while she was pregnant. She also admitted in December 2020 when E.U. was high on methamphetamine, he kept her up all night, stabbed her knee, pointed a gun at her, and held her hostage for three days in her hotel room. L.G.C. further testified in September 2021, the San Antonio Police Department responded to a call from the hotel where she was living, and she told police officers E.U. hit her in the face because he was upset with her for playing with her cell phone. She explained she had been allowing E.U. to visit her at her hotel room because he wanted to make sure she was doing okay and had enough food. She testified she believes despite E.U.'s tendency toward violence, he can be a better person.
Analysis
When viewing this evidence under the appropriate standards of review, we conclude it is legally and factually sufficient to support the trial court's best-interest finding. Here, the Department produced considerable evidence showing L.G.C. repeatedly subjected the children to harm and failed to demonstrate a willingness to effect positive change for them. The trial court heard testimony from both the Department caseworker and L.G.C. confirming this was not the Department's first involvement with L.G.C., and the children had been repeatedly exposed to domestic violence incidents between L.G.C. and E.U. The trial court also heard evidence L.G.C. continued to see E.U. in violation of the no contact and protective orders despite the history of domestic violence and did not fully recognize the danger he posed to her and the children's safety. See In re E.E.H., 2016 WL 8609228, at *5. And, although L.G.C. argues she completed her service plan and can provide for the children, the trial court heard testimony indicating she did not complete all of her counseling classes and was living in a hotel. See In re M.R., 2019 WL 6606167, at *8. Finally, the Department produced evidence the children's needs were being met in their current placements and the Department planned to reach out to the previous foster family who wanted to adopt all the children. See In re O.N.H., 401 S.W.3d at 688. Accordingly, when viewing all the evidence in the light most favorable to the trial court's best-interest finding, we conclude the trial court could have reasonably formed a firm belief or conviction that termination of L.G.C.'s parental rights was in the children's best interest. See J.F.C., 96 S.W.3d at 266. We further conclude 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 the trial court could not have reasonably formed a firm belief or conviction termination was in the children's best interest. See id. Therefore, we hold the evidence is legally and factually sufficient to support the trial court's best-interest finding, and we overrule L.G.C.'s sole issue on appeal. See Tex. Fam. Code § 161.001(b)(2).
Conclusion
Based on the foregoing, we conclude the evidence is legally and factually sufficient to support the trial court's best-interest finding. We therefore affirm the trial court's order terminating L.G.C.'s parental rights to J.D.U., J.M.U., and A.K.U.