Opinion
NUMBER 13-16-00562-CV
02-23-2017
IN THE INTEREST OF J.L.J., J.L., D.D.J, AND R.P., MINOR CHILDREN
On appeal from the County Court at Law No. 5 of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Hinojosa
Memorandum Opinion by Justice Benavides
By two issues, which we address as one, appellant I.P. challenges the termination of her parental rights in regards to J.L.J., J.L., D.D.J., and R.P. ("children"). We affirm.
Pursuant to Rule 9.8(b) of the Texas Rules of Appellate Procedure, we will utilize aliases when referring to parties and persons related to this proceeding. See TEX. R. APP. P. 9.8(b).
I. BACKGROUND
In October 2014, the Texas Department of Family and Protective Services ("the Department") filed its original petition for protection, conservatorship, and for termination of I.P.'s parental rights over her four children, J.L.J., J.L., D.D.J., and R.P., and their respective fathers. The petition was in response to I.P.'s testing positive for cocaine at the birth of R.P., her youngest child.
I.P. stated in an interview to the Department that she had used cocaine a few days before R.P.'s birth. I.P. also stated she had used cocaine with D.D., D.D.J.'s father. I.P. had allowed J.L.J. and J.L. to visit their father knowing he has a history with firearms, domestic violence, and drug use. The Department was concerned that I.P. was an inappropriate caregiver and petitioned to remove the children.
J.L.J. and J.L. were placed in the care of their paternal grandmother, E.R. D.D.J. was placed in the care of his parental grandmother, S.D. R.P. was initially placed in foster care upon his release from the hospital, but later, I.P.'s brother, D.P. and his family were approved for R.P.'s placement.
The Department worked towards reunifying I.P. and her children. I.P. slowly complied with many of the conditions set forth by the Department but never achieved full compliance. In October 2015, the trial court ordered the children be placed back with I.P. However, in December 2015, I.P. was arrested for possession of a controlled substance and child abandonment charges. The incident involved I.P. calling police when she heard rocks being thrown at her apartment window. When police arrived, I.P. was incoherent on the couch and suspected drug paraphernalia was found within the reach of the children. I.P. was arrested and the Department was called out. The children were subsequently returned to their former placements.
A bench trial commenced on June 13, 2016, and was continued until August 26, 2016. There, witnesses from the Department as well as the guardian ad litem for the children testified. E.R. and I.P. also testified. All witnesses but I.P. recommended termination of parental rights. Although I.P. had plans to change her life and provide for the children, the trial court ultimately concluded that termination of I.P.'s parental rights was in the best interest of the children and fell under provisions in the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(D), (E), (N), (O), & (P) (West, Westlaw through 2015 R.S.). The trial court also terminated the rights of the fathers of J.L.J, J.L. and R.P. D.D.J.'s father, D.D., was a party to the trial court proceeding and was given custody of D.D.J. following the bench trial. This appeal followed.
II. TERMINATION OF PARENTAL RIGHTS
By two issues which we address as one, I.P. challenges the legal and factual sufficiency of the evidence used to terminate her parental rights.
A. Standard of Review
"Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties and powers normally existing between them." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). While parental rights are of a constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
A court may order the termination of a parent-child relationship if it shown by clear and convincing evidence that a parent has met at least one of the statutory factors listed in the family code, coupled with an additional finding by clear and convincing evidence that termination is in the child's best interest. See TEX. FAM. CODE. ANN. § 161.001(b)(1)-(2); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002) (noting the two-prong test in deciding parental termination and that one act or omission of conduct satisfies the first prong); In re E.M.N., 221 S.W.3d 815, 820-21 (Tex. App.—Fort Worth 2007, no pet.). "Clear and convincing evidence" is defined as the "measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX. FAM. CODE ANN. § 101.007 (West, Westlaw through 2015 R.S.). "This intermediate standard falls between the preponderance of the evidence standard in civil proceedings and the reasonable doubt standard of criminal proceedings." In re L.J.N., 329 S.W.3d at 671. This heightened standard of review is mandated not only by the family code, see TEX. FAM. CODE ANN. § 161.001, but also the Due Process Clause of the United States Constitution. In re E.N.C., 384 S.W.3d 796, 805 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)). "It is our obligation to strictly scrutinize termination proceedings and strictly construe the statute in favor of the parent." In re L.J.N., 329 S.W.3d at 673.
In a legal sufficiency review, we look at all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 266. Furthermore, we must assume that the factfinder resolved disputed facts in favor of its findings if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient and render judgment in favor of the parent. Id.
We review challenges to the factual sufficiency of the evidence in a termination proceeding by giving "due deference to a [trial court's] factfindings," and we do not "supplant the [factfinder's] judgment" with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curium). In our review, we should "inquire 'whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the [] allegations'" from the entire record. Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). "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. However, in applying this standard, we must not be so rigorous in our analysis that the only fact findings that could withstand review are those established beyond a reasonable doubt. Id.
B. Applicable Law
I.P.'s rights were terminated under Texas Family Code section 161.001 (D), (E), (N), (O), and (P) and in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001.
1. Section 161.001 (D) and (E)
Family Code section 161.001(D) states: "that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." See id. at (D). Section (E) states: "that the parent 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 id. at (E). As these grounds address similar requirements, we will address them together.
"To endanger means to expose to loss or injury, to jeopardize." In re E.M., 494 S.W.3d 209, 221 (Tex. App.—Waco 2015, pet. ref'd). "Both subsections thus require 'endangerment'-that is jeopardizing the child's physical or emotional well-being." In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. ref'd.) "But they differ as to the cause of the endangerment." Id. "Under both subsections, therefore, termination must rest upon parental conduct. But subsection D permits termination because of a single act or omission, while subsection E requires a 'course of conduct.'" Id.
Subsections D and E also differ in the relationship each requires between the parental conduct and the endangerment. Subsection D requires the endangerment to be the direct result of the child's environment and only an indirect result of a parental act or omission; subsection E, on the other hand, requires the endangerment be a direct result of parental conduct. Subsection D thus permits a less than direct relationship between the parental conduct and the endangerment but it also requires an additional factor-an endangering environment-to be proved, while subsection E requires a direct relationship but this relationship, standing alone, justifies termination.Id. at 367-68.
"A parent's illegal drug use and drug-related criminal activity may also support a finding that the child's surroundings endanger his or her physical or emotional wellbeing." In the Interest of E.M., 494 S.W.3d at 222. Also, because "it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under section 161.001(1)(E)." Id. (quoting Walker v. Tex. Dep't Fam. & Prot. Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)). "A factfinder may reasonably infer from a parent's refusal to take a drug test that the parent was using drugs." Id. "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." Id.
2. Best Interest of the Children
If we find that a reasonable factfinder could have found evidence to support termination under a statutory ground, we must next determine if there was clear and convincing evidence that termination of I.P.'s parental rights is in the children's best interests. See TEX. FAM. CODE ANN. § 161.001(b)(1); In re J.F.C., 96 S.W.3d at 261. We must decide how to "reconcile 'a parent's desire to raise [the] child with the State's responsibility to promote the child's best interest.'" In re O.R.F., 417 S.W.3d 24, 39 (Tex. App.—Texarkana 2013, pet. denied) (citing In re E.R., 385 S.W.3d 552, 555 (Tex. 2012)). "There is a strong presumption that a child's interest is best served by preserving the conservatorship of the parents; however, clear and convincing evidence to the contrary may overcome that presumption." Id.
In deciding what is in the "best interest of the child", we look to the following factors, known as the Holley factors, to make a proper determination. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The Holley factors include, but are not limited to:
(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 a proper one, and (9) any excuse for the acts or omissions of the parent.In re B.R., 456 S.W.3d 612, 615-16 (Tex. App.—San Antonio 2015, no pet.) (quoting Holley, 544 S.W.2d at 371-72). "These factors are not exhaustive; some listed factors may be inapplicable to some cases; other factors not on the list may also be considered when appropriate." In re D.C., 128 S.W.3d 707, 716 (Tex. App.—Fort Worth 2004, no pet.). "Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the children." Id. "On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding." Id. "Additionally, the Family Code lists thirteen similar factors for determining the parents' willingness and ability to provide a safe environment." In re J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
C. Discussion
1. Section 161.001 (D) and (E)
Here, the Department alleged that I.P.'s drug use and inability to provide a stable environment were the main reasons for a finding under these subsections. The initial incident that led to the Department's involvement was due to I.P. testing positive for cocaine at the birth of R.P. and admitting to consuming drugs shortly before his birth. The children were initially removed and placed with family members, although R.P. was placed in foster care. The children were able to adapt and flourish in their placements.
The children being placed with family members was not an unusual experience for them. E.R. testified that I.P. frequently had dropped the children off with her in order to go spend time with I.P.'s friends.
I.P. did occasionally make positive progress throughout the duration of the case. I.P. completed most of the required classes and counseling sessions. There were numerous negative drug tests, but there were also frequent positive drug tests, mainly for cocaine. In October 2015, the trial court decided to return the children to I.P.'s care. But in December 2015, exactly two months after the return, I.P. was arrested for possession of a controlled substance and child endangerment. Not only was I.P. incoherent when police were called out to her apartment, but synthetic marijuana was within reach of the children upon the police's arrival. Two of the Department's witnesses testified they suspected I.P. of using synthetic marijuana, although she was never observed doing so. Although I.P. states that a witness's suspicion "is not the same as evidence" in her brief, the police report from the December arrest was admitted into evidence before the trial court, and synthetic marijuana was collected from the home. The trial court was free to accept the report as confirmation of continued drug use.
Besides her ongoing drug issues, I.P. has been unable to provide a stable environment for the children. The trial court is allowed to "look at parental conduct both before and after the birth of a child." In re E.M., 494 S.W.3d at 222. Prior to the involvement of the Department, J.L.J, and J.L. were exposed to their father who had guns and drugs in his home. The children had knowledge of guns and spoke to case workers about it. J.L.J. and J.L. were not around their father during the pendency of the case due to his incarceration. Prior to the close of the bench trial, their father relinquished his parental rights to J.L.J. and J.L. in order for his mother to adopt them.
During the case, I.P. was residing in an apartment, but lost the apartment due to her arrest and incarceration in December 2015. Witnesses testified that the apartment manager explained that they have a one-strike policy regarding eviction, and even if all the charges were dismissed, I.P. would still not be allowed to reapply to gain a residence for five years due to the initial incident. I.P. testified that she was looking into other housing options, but as of the time of the bench trial, she had not submitted an application. Therefore, she was living between her mother's home and friends' homes. Some of the friends I.P. stayed with were unaware that she had four children.
Although I.P. attempted to make progress, after almost two years, the trial court found the progress was not substantial enough and she continued to put the children in situations that endangered their wellbeing. The evidence was legally and factually sufficient to support a trial court finding under section 161.001(D) and (E). See TEX. FAM. CODE. ANN. § 161.001(D) and (E); In re J.F.L., 96 S.W.3d at 266; In re H.R.M., 209 S.W.3d at 108.
Based on our finding that there was sufficient evidence to support the trial court's finding under subsections (D) and (E), we do not need to further evaluate subsections (N), (O), and (P), as only one section is required for termination. See In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002) (noting the two-prong test in deciding parental termination and that one act or omission of conduct satisfies the first prong).
2. Best Interest of the Children
In evaluating the Holley factors, we look at the following:
(a) the desires of the child
"When children are too young to express their desires, the factfinder may consider whether the children have bonded with their foster family, are well-cared for by them, and have spent minimal time with the parent." In re S.R., 452 S.W.3d 351, 369 (Tex. App.— Houston 2014, pet. denied). "A child's need for permanence through the establishment of a 'stable permanent home' has sometimes been recognized as the paramount consideration in a best-interest determination." Id. "Therefore, evidence about the present and future placement of the children is relevant to the best-interest determination." Id.
I.P.'s children are very young, as is I.P. According to testimony presented before the trial court, J.L.J. wished to be reunited with I.P. His sister, J.L., seemed to be torn between her current placement with E.R. and I.P. D.D.J. and R.P. were both infants who were unable to express their desires, although both were flourishing with the current placements with their father and uncle, respectively. Even though J.L.J. wishes to be placed with I.P., it is clear that the children are placed in a safer and more nurturing environment for their well-being. This factor weighs for termination.
(b) the emotional and physical needs of the child now and in the future
(c) the emotional and physical danger to the child now and in the future
The emotional and physical needs of the children are of paramount concern. I.P.'s children were all thriving with their current placements. The concern would be to return them to I.P. The trial court can consider past events in making the determinations of best interest. See May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied) (that evidence of past misconduct or neglect is a permissible inference that a parent's future conduct may be measured by their past conduct.)
The children were removed from I.P. for drug abuse while pregnant. I.P. had previously tested positive upon the birth of D.D.J. Although she made efforts to stay off drugs, in December 2015, she was arrested for drug possession. The children were in her care in December. Witnesses testified that J.L.J. had to call the social worker on the case to come get them and he was scared and crying. J.L.J. was around eight years old at the time of that arrest. J.L. had made statements that I.P. was smoking the "funny cigarettes" and J.L. had told her to stop. J.L. was around six years old during the pendency of the case. E.R. also testified that when she spoke to J.L.J. and J.L. on the phone, they were at times looking after their baby brothers while I.P. was sleeping. J.L. also commented to E.R. that she would change R.P.'s diapers. Being in I.P.'s care caused the two older children to have to assume responsibilities that children their age normally do not face. Living with E.R., they were allowed to be normal children.
Besides her history of drug use, I.P. also testified that she was now caring for her mother, who had recently suffered a stroke. I.P. also testified at the bench trial that she was now pregnant with another child, and not in a relationship with the baby's father. I.P. struggled with employment and drug use when her four children were returned to her for a two-month period. All the caregivers of the four older children have stated they want I.P. to continue to be a presence in the children's lives. Allowing for the children to be permanently placed with their caregivers and adopted, with I.P. being allowed to visit would be in the children's best interest. These factors weigh in favor of termination.
(d) the parental abilities of the individuals seeking custody
(e) the programs available to assist these individuals to promote the best interest of the child
(f) the plans for the child by these individuals or by the agency seeking custody
(g) the stability of the home or proposed placement
As these four factors are related, we will address them together. All of I.P.'s children are currently being cared for by family members and those caregivers all are seeking the ability to adopt those children. The children have been cared by for these family for most of the duration of the pending case. The children were returned to I.P. for a two-month period of time, concluding upon her arrest.
J.L.J. and J.L. are being cared for by their paternal grandmother, E.R. E.R. testified at the trial on the merits and stated that since the father of both children has voluntarily relinquished his rights, she plans to try to adopt them. These two children have spent a substantial amount of time, both during and prior to the start of the Department's involvement with E.R. According to testimony presented at trial, the children are very bonded with E.R., have been doing well in school while with her, and are both happy and well-adjusted children. E.R. has provided them with a stable and loving home since their birth, and wishes to continue. Additionally, during E.R.'s testimony, she stated that she wants the children to have a relationship with I.P. as well as their father, but under her supervision. The caregivers also took strides to allow the children to visit their siblings, encouraging their relationship.
D.D.J. was also being cared for by his paternal grandmother, S.D., at the beginning of the Department's involvement. The Department initially was looking at possible termination of his father, D.D.'s rights. However, throughout the course of the proceedings, D.D. has demonstrated his commitment to D.D.J. and made significant progress with the Department's conditions. At the final hearing, the trial court found that D.D. was in compliance with the Department's programs, unlike I.P., and ordered D.D.J. to be returned to his father's care. The advocates for the Department were comfortable with this recommendation and believed that D.D.J. was best served being with his father. The family support for D.D. was present and D.D.J. thrived in his grandmother's care. The home was stable and allowed for his normal development.
R.P. initially bounced around between foster homes but has since been placed with I.P.'s brother, D.P. D.P. and his family underwent a home study and received positive results. They have since taken in infant R.P., and he has thrived in their home as well. J.P., D.P.'s wife, testified before the trial court, and talked about how R.P. behaved in their home. J.P. stated he was a well-adjusted child, after having some minor issues during visitations with I.P. J.P. also stated they wished to adopt R.P. and make him a permanent member of their family. R.P. was placed in foster care from shortly after his birth and developed almost no relationship with I.P.
I.P. testified that she wants to be there for her children, but she is currently not in a place where she can do that. While I.P. has tried to remain off drugs and tested negative on recent drug tests, she has no employment or home to speak of. Although she testified that she had interviews for employment pending, I.P. frequently changed jobs throughout the course of the Department's involvement and held no steady, long-term job. Additionally, I.P. has not secured housing and is going between multiple different locations, including some friends which were unaware of the four children. While the will to change is admirable, the proof of long-term change does not exist. The children are all in stable, loving home environments where their needs are being met and they are thriving. These factors weigh in favor of termination. It is in the best interest of all four children to remain with their current placements.
(h) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one
(i) any excuse for the acts or omissions of the parent
The evidence addressing these factors were discussed in the previous factors. Prior to the birth of R.P., I.P. used cocaine, knowing she was pregnant. When interviewed by the Department shortly after R.P.'s birth, I.P. stated she used cocaine because she suffers from depression. I.P. has also been known to use "pills", marijuana, synthetic marijuana, as well as cocaine.
The drug use has also led to her most recent arrest and incarceration. Although it was unclear at the bench trial if all the charges had been dropped or were still pending regarding the possession charge, the arrest still occurred. I.P. was still incoherent when police arrived, even though there were three small children in the home. Drugs were still found within the children's reach that night.
I.P. also has no residence to bring the children home to, if they were to be returned to her. Her drug arrest caused her to lose her housing, and she had not gained a new place to live. She is currently living with her mother and friends, but I.P. also testified that not all of her friends know she has four other children.
I.P. was also unemployed at the time of the bench trial. Although I.P. has had multiple jobs throughout the pendency of the case, she does continue to seek employment. I.P. testified she had interviews set up shortly after the bench trial. However, I.P. also testified that her mother had recently suffered a stroke and she had agreed to help care for her. While caring for her ill mother is admirable, I.P. is also pregnant with her fifth child. I.P. was not at the time of trial receiving income for caring for her mother and was not receiving government assistance.
The children are in stable environments where they are loved and well-cared for. While all the witnesses testified that I.P. seems to love her children very much, the trial court is required to determine what is in the best interest of the children. These factors support termination.
All of the Holley factors in this case favor termination. We overrule I.P.'s issue.
3. Summary
We hold that the evidence is legally and factually sufficient to support the trial court's findings of violations under section 161.001(D) and (E). See In re J.F.C., 96 S.W.3d at 268; In re H.R.M., 209 S.W.3d at 108. We additionally hold the trial court properly found it was in the children's best interest for termination of I.P.'s rights to occur. We overrule I.P.'s two issues, which we addressed as one.
III. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice Delivered and filed the 23rd day of February, 2017.