Opinion
04-22-00042-CV
07-06-2022
IN THE INTEREST OF J.J.T., a Child
From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2021-PA-00351 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice
MEMORANDUM OPINION
Luz Elena D. Chapa, Justice
Derrick appeals the trial court's order terminating his parental rights to J.J.T. He challenges the sufficiency of the evidence to support the trial court's grounds for termination and the best-interest finding, and separately challenges the trial court's conservatorship finding. We affirm.
To protect the identity of the minor child, we refer to appellant by a fictitious name and to the child by her initials. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8.
Background
The Department of Family and Protective Services filed an original petition on March 2, 2021. In the petition, the Department sought appointment as J.J.T.'s temporary managing conservator and termination of Derrick's parental rights.
On January 6, 2022, the case proceeded to a bench trial consisting of testimony from four witnesses. After hearing the evidence, the trial court found by clear and convincing evidence Derrick constructively abandoned J.J.T. and failed to comply with the provisions of the court order that specifically established the actions necessary for him to secure J.J.T.'s return. See TEX. FAM. CODE §§ 161.001(b)(1)(N) &(O). The court also found by clear and convincing evidence terminating Derrick's parental rights was in J.J.T.'s best interest. See TEX. FAM. CODE § 161.001(b)(2). Based on its findings, the court terminated Derrick's parental rights to J.J.T. and appointed the Department permanent managing conservator of the child.
The trial court also terminated the parental rights of J.J.T.'s mother.
Derrick timely appealed the trial court's order, challenging one of the grounds for termination, the trial court's best-interest finding, and the trial court's appointment of the Department as managing conservator.
The Evidence Presented at Trial
A. Kayla Tull and Beatriz Sanchez
Kayla Tull was the legal caseworker from March 2021 through November 2021. She testified J.J.T. and her brother were removed from the custody of their mother due to allegations of substance abuse against her. On cross-examination, she confirmed Derrick was a non-offending parent.
Tull testified she created a service plan for Derrick with his participation and provided it to him. Derrick was required to complete a psychological assessment and attend therapy and parenting classes. Derrick completed his psychological assessment and was diagnosed with schizophrenia and an unidentified personality disorder. He told Tull he heard voices that taunted him. According to Tull and Beatriz Sanchez-the legal caseworker from December 2021 through trial-Derrick did not consistently attend therapy. Derrick attended one session of therapy in April 2021, but he then stopped engaging until December 2021. Tull also testified Derrick did not complete a parenting class. Derrick cited work as an obstacle to his participation in the service plan, but Tull informed him many times he could complete these services on evenings and weekends.
Tull further testified Derrick struggled to attend visits with J.J.T. early in the case, and it hindered his ability to develop a bond with J.J.T. Derrick often missed two or three visits a month, citing work obligations. During those early visits, J.J.T. did not want to visit with Derrick, and her brother often joined in the visits to keep her comfortable. When Derrick did attend scheduled visits, his visits were appropriate. Derrick would let J.J.T. watch videos on his phone, and they went to the park once and played with a ball. Derrick's visits became more consistent toward the end of the case, but Derrick still missed two visits in the final two months before trial. As of January 2021, Derrick and J.J.T. were slowly making progress toward forming a bond.
Tull further testified, however, she did not think Derrick could meet the physical and emotional needs of J.J.T. Derrick earned enough income as a self-employed construction contractor to support J.J.T., but his long hours resulted in too many missed visits. At the beginning of the case, Derrick was living with his sister, but when Tull went to the home in October 2021, Derrick's sister informed her Derrick was living with his girlfriend. Neither Tull nor Sanchez followed up with Derrick about his living situation or visited his new residence. Tull also testified Derrick did not inquire about J.J.T.'s medical needs. But she conceded when J.J.T. had COVID-19, Derrick followed up with her about J.J.T.'s status. She also conceded she did not offer Derrick an opportunity to meet any of J.J.T.'s medical or dental needs.
Derrick married his girlfriend in December 2021-one month before trial.
When the case commenced, the Department placed J.J.T. and her brother with fictive kin- a family friend to the children's mother who agreed to be their foster mother. Tull testified the foster mother would be able to meet the children's physical and emotional needs. The foster mother's home has bedding and toys for the children. She has taken care of their medical and dental needs and has enrolled them in school. J.J.T. is happy with the foster mother. She initially wanted J.J.T. and her brother returned to their mother, but she is now willing to serve as a longterm placement for both children. The foster mother has also been accommodating about Derrick's visits.
Both Tull and Sanchez testified termination of Derrick's parental rights were in J.J.T.'s best interest.
B. Derrick
Derrick testified he saw J.J.T. when she was born, but shortly after seeing her, he got into legal trouble and began a two-year sentence of incarceration for manslaughter. He maintained contact with J.J.T. while he was incarcerated, and J.J.T.'s mother sent him pictures of J.J.T. When he was released, he sought out J.J.T. and cooperated with the Department when it got involved, identifying himself as J.J.T.'s father.
Derrick testified he was working to complete his service plan. He completed his psychological assessment and was forthcoming about hearing voices while incarcerated; he thought it was important to bring that to the Department's attention and for his own well-being. He disputed Tull and Sanchez's testimony he only engaged in therapy the month before trial. He testified he was seeing therapist Caesar Garcia for "three or four" months before trial and attended therapy while he was incarcerated. He was prescribed medication for his schizophrenia, but no longer took it because he felt "too heavy." Derrick testified he attempted to complete a parenting class, but was unable because he was injured at work. Then, the parenting class facilitator had to reschedule because he was sick. Derrick was eventually scheduled to attend a parenting class the day of trial, but instead had a visit with J.J.T. that day and rescheduled it for the Monday after trial. However, he did not dispute that he did not complete his service plan due to work. He explained it was important for him to maintain his work relationships because of his criminal background and to maintain his financial stability.
Derrick also did not dispute he missed visits with J.J.T. due to work. He testified, however, he did not reschedule them because he did not know he could do so. Despite his missed visits, he believed he had a bond with J.J.T. and noted she called him "daddy." He testified if awarded custody, he would look into daycare for J.J.T. because of his work schedule. He further testified he loved J.J.T. and, if not awarded custody of J.J.T., he would be willing to share custody with the foster mother.
Derrick further testified he could financially support J.J.T. and provide her with a home. He testified he earned enough money to support her as a self-employed subcontractor laborer, observing he provided $100 every two weeks for J.J.T.'s care. He further testified he lived in the home owned by his wife-who he married the month before trial. She was willing to undergo a background check because of the close contact she would have with J.J.T. Derrick further testified the home had a bedroom and bed for J.J.T. and is an appropriate place for her.
Standard of Review
A judgment terminating parental rights must be supported by clear and convincing evidence. TEX. FAM. CODE § 161.001(b). To determine whether this heightened burden of proof was met, we employ a heightened standard of review to decide 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." In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.-San Antonio 2013, no pet.). Under this standard, the trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witnesses. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). To give proper deference to the factfinder's role, we must assume it resolved disputed evidence in favor of its findings if a reasonable factfinder could have done so. Id. at 344.
In our legal sufficiency review, we review the evidence in the light most favorable to the finding and disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). However, we must consider undisputed or uncontradicted evidence in our review, even if that evidence does not support the trial court's finding. Id. When conducting a factual sufficiency review, we consider the entire record. Id. Rather than disregard disputed evidence that a reasonable factfinder could not have credited in favor of the finding, we must determine whether, in light of the entire record, that evidence "is so significant that a factfinder could not reasonably have formed a firm belief or conviction" that the finding was true. Id.
Legal and Factual Sufficiency of the Evidence to Support Termination Pursuant to Tex. Fam. Code § 161.001(b)(1)(O)
Derrick challenges the sufficiency of the evidence supporting the trial court's finding under section 161.001(b)(1)(O). When, as here, the trial court terminates a parent's rights on more than one predicate ground, we may affirm on any one ground. In re J.J.S., No. 04-17-00747-CV, 2018 WL 1072336, at *2 (Tex. App.-San Antonio Feb. 28, 2018, pet. denied) (mem. op.). Because Derrick does not challenge the sufficiency of the evidence to support the trial court's finding under section 161.001(b)(1)(N), he has waived any complaint about the sufficiency of the evidence to support the unchallenged ground. Id. Because the unchallenged ground supports the termination of Derrick's parental rights, we overrule Derrick's first issue. See id.
Legal and Factual Sufficiency of the Evidence to Support the Trial Court's Best-Interest Finding
Derrick argues the evidence was legally and factually insufficient to support the trial court's best-interesting finding. To terminate parental rights, a trial court must find by clear and convincing evidence termination is in the child's best interest. TEX. FAM. CODE § 161.001(b). Under Texas law, there is a strong presumption the best interest of a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). However, a court must also presume "the prompt and permanent placement of the child in a safe environment is . . . in the child's best interest." TEX. FAM. CODE § 263.307(a). In making a best-interest determination, the factfinder looks at the entire record and considers all relevant circumstances. See C.H., 89 S.W.3d at 27-29.
In determining the best interest of a child, a trial court should consider the factors set out in section 263.307 of the Family Code. Courts also apply the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 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. Id. Not every factor must be proven for a trial court to find termination is in the child's best interest. C.H., 89 S.W.3d at 27.
These factors include: the child's age and physical and mental vulnerabilities; the frequency and nature of out-ofhome 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(b).
In our review of the trial court's best-interest findings, we must consider "the totality of the circumstances in light of the Holley factors" to determine whether sufficient evidence supports the challenged finding. In re B.F., No. 02-07-334-CV, 2008 WL 902790, at *11 (Tex. App.-Fort Worth Apr. 3, 2008, no pet.) (mem. op.).
A. J.J.T.'s Desires
When a child is too young to express her desires like three-year-old J.J.T., the factfinder may consider whether the child has bonded with caregivers, is well-cared for by them, and has spent minimal time with a parent. See In re N.J.D., No. 14-17-00711-CV, 2018 WL 650450, at *6 (Tex. App.-Houston [14th Dist.] Feb. 1, 2018, pet. denied) (mem. op.). The undisputed evidence shows J.J.T. is well cared for by her foster mother, loves living with her brother in the foster mother's home, and Derrick missed multiple visits due to work. When he attended visits, however, they were appropriate.
There was no testimony as to whether J.J.T. was bonded with her foster mother. The undisputed evidence showed Derrick loved J.J.T., he was developing a bond with her, and she called him "daddy." However, the degree of the bond between them is disputed. Because the trial court is the sole judge of the weight and credibility of the evidence, we must assume the trial court resolved the disputed evidence about Derrick's bond in favor of its finding because a reasonable factfinder could have done so and, in light of the entire record, the evidence is not so significant a factfinder could not have reasonably formed a firm belief or conviction in its finding. See J.O.A., 283 S.W.3d at 344, 346.
This factor weighs in favor of the trial court's best-interest finding.
B. The Emotional and Physical Needs of J.J.T.
The Department presented no direct testimony regarding J.J.T.'s needs. However, caseworker Tull testified the foster mother met J.J.T.'s needs by providing her with a home, bedding, and toys. Derrick testified his wife's home was an appropriate place for J.J.T., with a bedroom and bed for her. The Department also offered general testimony showing the foster mother enrolled J.J.T. in school and took her to medical and dental appointments. When asked whether Derrick was informed he could participate in such appointments, Tull testified she did not tell him, but it did not matter because COVID-19 protocols allowed only one parent to attend. She conceded, however, Derrick maintained contact with her about J.J.T.'s status when she contracted COVID-19.
She added Derrick could not meet J.J.T.'s needs because he worked long hours, did not have a strong bond with J.J.T, and had not completed his service plan, including parenting classes. Derrick admitted he missed appointments and his failure to comply with the service plan was related to maintaining his employment. Derrick also does not challenge the trial court's finding that he constructively abandoned J.J.T. Although this finding did not relieve the Department from proving termination is in J.J.T.'s best interest, the evidence supporting Derrick's constructive abandonment, including missing multiple visits with J.J.T., is probative on the issue of J.J.T.'s best interest. See C.H., 89 S.W.3d at 28; In re B.R., 456 S.W.3d 612, 615 (Tex. App.-San Antonio 2015, no pet.).
This factor weighs slightly in favor of the trial court's best-interest finding.
C. The Emotional and Physical Danger to J.J.T.
Derrick testified he got into legal trouble after J.J.T. was born and was incarcerated for manslaughter for the first two years of J.J.T.'s life. Derrick's past conduct is probative of his future conduct when evaluating J.J.T.'s best interest. See O.N.H., 401 S.W.3d at 684. The Department elicited no testimony regarding Derrick's conviction beyond those facts or otherwise identify any other criminal convictions at trial. Nor did the Department present any other evidence of any danger to J.J.T. if Derrick's rights were not terminated. However, a parent's lengthy absence from a child's life during her early years due to incarceration creates an "emotional vacuum" threatening the child's emotional well-being. In re J.M.G., 608 S.W.3d 51, 57 (Tex. App.-San Antonio 2020, pet. denied). "Additionally, criminal conduct and incarceration affects a parent's life and the ability to parent, thereby subjecting a child to potential emotional and physical danger." In re S.A.M., No. 04-18-00607-CV, 2019 WL 573469, at *5 (Tex. App.-San Antonio Feb. 13, 2019, pet. denied) (mem. op.). This factor weighs in favor of the trial court's best-interest finding.
D. Derrick's Parental Abilities
The undisputed evidence shows Derrick did not complete a parenting class, but the visits he did attend with J.J.T. were appropriate. Derrick also inquired about J.J.T. when she had COVID-19, prepared a bedroom with a bed for her in his wife's home, and provided $100 for her care every two weeks. Derrick works long hours, and his work schedule caused him to miss visits with J.J.T. and prevented him from completing his services. Because the trial court was entitled to assign additional weight to Derrick's failure to complete his parenting classes, which would have helped him strengthen his parenting skills, this factor weighs slightly in favor of the trial court's bestinterest finding.
E. The Programs Available to Assist Derrick
The Department testified Derrick was provided with a service plan that included numbers and referrals for Derrick to seek services. Derrick completed his psychological assessment but not his therapy or parenting class requirements. This factor weighs in favor of the trial court's bestinterest finding.
F. Derrick's Plans
The Department elicited no testimony regarding Derrick's plans but indicated the foster mother was willing to be a long-term placement for J.J.T. The Department did not present evidence about whether the foster mother was willing to adopt J.J.T. or whether she was simply willing to continue serving as her foster parent for some period of time. Derrick testified he would have J.J.T. live with him and his wife. Because of his work schedule, he would have to find an appropriate daycare for J.J.T., but had not researched any yet. This factor weighs slightly against the trial court's best-interest finding.
G. The Stability of Derrick's Home
The undisputed evidence at trial showed, upon his release from incarceration, Derrick began living in his sister's residence-where he lived when the case commenced. No later than October 2021-approximately three months before trial-Derrick moved into his then-girlfriend's house, they married, and has lived in this home ever since. This factor is neutral as to the trial court's best-interest finding.
H. Derrick's Acts or Omissions Indicating the Existing Parent-Child Relationship is Not Proper and Derrick's Excuse
The Department presented no evidence Derrick's relationship with J.J.T. was inappropriate. This factor does not weigh in favor of termination.
The Department's vague testimony focused on Derrick's long work hours and failure to complete his service plan. Although the Department failed to present evidence of every single Holley factor, "not every factor must be proved to find that termination is in the child's best interest." In re P.G.D., No. 04-19-00896-CV, 2020 WL 2543310, at *2 (Tex. App.-San Antonio May 20, 2020, pet. denied) (mem. op.). Here, most of the factors weigh in favor of the trial court's best-interest finding.
Considering the totality of the circumstances in light of the Holley factors and viewing all of the evidence in the light most favorable to the best-interest finding, the trial court could have reasonably formed a firm belief or conviction terminating Derrick's parental rights was in J.J.T.'s best interest. See J.F.C., 96 S.W.3d at 266; B.F., 2008 WL 902790, at *11. Further, 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 J.J.T.'s best interest. See J.F.C., 96 S.W.3d at 266. We therefore hold the evidence is legally and factually sufficient to support the trial court's best-interest finding. See TEX. FAM. CODE § 161.001(b)(2).
The Trial Court's Conservatorship Finding
Derrick contends the trial court abused its discretion in making its conservatorship finding because its termination order was based on insufficient evidence. However, the trial court's conservatorship order was not made solely as a consequence of the termination order. It was instead based on the trial court's findings that appointment of Derrick as a managing conservator was not in the best interest of J.J.T. and such appointment would significantly impair her physical health or emotional development. See TEX. FAM. CODE § 153.131 (authorizing appointment of Department as nonparent managing conservator if trial court makes certain findings). Derrick does not challenge the trial court's findings that his appointment as managing conservator would significantly impair J.J.T.'s physical health or emotional development. See In re J.A.J., 243 S.W.3d 611, 615-17 (Tex. 2007) (holding parent must specifically challenge trial court's section 153.131 findings because such a challenge not subsumed within parent's challenge to termination order). Because he does not challenge these findings, and we have already held the evidence supports termination is in J.J.T.'s best interest, we affirm the trial court's conservatorship finding. See In re M.C.L. IV, No. 04-21-00276-CV, 2022 WL 218998, at *7-8 (Tex. App.-San Antonio Jan. 26, 2022, no pet.) (mem. op.) (same); see also In re B.F.H-J., No. 04-20-00461-CV, 2021 WL 111922, at *5 (Tex. App.-San Antonio Jan. 13, 2021, no pet.) (mem. op.) ("Having determined the evidence is legally and factually sufficient to support the termination of R.J.'s parental rights, we further hold the trial court did not abuse its discretion in appointing the Department as the managing conservator of the children."); In re L.P., No. 04-20-00140-CV, 2020 WL 5027385, at *13 (Tex. App.-San Antonio Aug. 26, 2020, pet. denied) (mem. op.) ("Because we are affirming the trial court's termination order, we need not address the conservatorship issue.").
Conclusion
We affirm the trial court's order.