Opinion
NO. 14-17-00219-CV
08-17-2017
IN THE INTEREST OF J.M.R, JR. AND J.R., CHILDREN
On Appeal from the 313th District Court Harris County, Texas
Trial Court Cause No. 2016-00809J
MEMORANDUM OPINION
The trial court terminated the parental rights of T.D.C. (Mother) and J.M.R. (Father) with respect to their children, Jack and Jenny, and appointed the Texas Department of Family and Protective Services (the Department) to be the children's managing conservator. On appeal, Mother challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of her parental rights is in the children's best interest. She does not challenge the statutory predicate bases for termination or the Department's appointment as managing conservator. Father has not appealed. We affirm.
Jack and Jenny are pseudonyms. See Tex. R. App. P. 9.8(b)(2).
BACKGROUND
A. Removal
The Department received a referral in early January 2016 alleging Jack and Jenny, then ages three and two, were being sexually abused by an adult named Tim. Jenny reportedly disclosed that Tim touched her "in her private area." The reporter also alleged neglectful supervision and medical neglect of the children by the parents. The following facts come from the removal affidavit prepared by Department investigative caseworker Ambryia Wilson.
Wilson went to Mother's home the day after receiving the referral. The children appeared to be healthy, clean, free of marks and bruises, and developmentally on target. Mother accused her sister of making the report to the Department in retaliation against Mother for a previous dispute. Mother told Wilson that as soon as Wilson left, Mother would take the children away and Wilson would never see them again. Initially, Mother denied current drug use and refused to submit to drug tests. She then admitted to smoking marijuana, taking ecstasy, and having a prescription for Xanax. She consented to a drug test, which showed she was positive for amphetamine and methamphetamine.
Mother's roommate, L.S., agreed to care for the children in a Parental Child Safety Placement (PCSP), and Mother agreed to move out of their apartment. Two days later, L.S. called Wilson to report Mother never left the apartment and had "become difficult." L.S. said she could not serve as a PCSP under those circumstances. Before Wilson could follow up with L.S., Mother snuck out in the middle of the night with the children. L.S. did not know where the family was but believed Mother would return because she did not take all of her belongings. Later that day, Mother contacted L.S. and asked her to tell Wilson that she and the children were on their way to Chicago to be with Father's family and "no one is taking her children."
Father called Wilson the next day, saying he was just released from jail and did not know where Mother or the children were. He said he no longer associated with Mother and was sure she was not with his family in Chicago. Father told Wilson he was willing to complete the services required by the Department to have his children returned. He asked that the children be placed with his sister.
Over the next few weeks, Mother and Father behaved erratically, deceived Wilson, and refused to disclose the location of the children. One day near the end of January, they led Wilson, two other caseworkers, and police officers on a wild goose chase through a few houses in a neighborhood. At one point an unknown adult walked the children out of a house toward Mother and Father, who were waiting with a running SUV. A brief struggle ensued as the caseworkers attempted to pick the children up before they reached Mother and Father. The caseworkers were unsuccessful, and Mother and Father got away with the children in their arms.
Father called Wilson on February 10, 2016, more than a month after the investigation began. He was mad because Mother had reportedly received $5,000 as a tax refund but had not spent any of the money on the children. Father said the children were at a friend's house and asked Wilson to go pick them up.
Accompanied by police officers, Wilson arrived at the house and was permitted entry. Jenny was lying on the couch. She was wearing a shirt and pants but no socks or shoes. Jack was playing a video game. He was wearing pants but no shirt, socks, shoes, or underwear. The adults in the home reported Mother arrived at the house in a frantic state, said she "can't do it," and left. She did not leave anything for the children. They had nothing but the clothes on their back. Wilson removed the children from the home.
The Department filed this suit the next day and attached Wilson's affidavit to the original petition. The trial court appointed the Department the children's temporary managing conservator.
B. Family service plans
The trial court signed an order requiring both parents to comply with any family service plan by the Department. Each service plan identified the tasks and services the parent needed to complete before the children could be returned to his or her care.
Both parents' plans required them to, among other things: complete parenting classes; complete anger management classes; obtain and maintain suitable employment and stable housing; complete a substance abuse assessment and follow the assessor's recommendations; submit to random drug testing; complete a psychosocial evaluation and follow the evaluator's recommendations; maintain regular contact with the caseworker; and make reasonable efforts to attend and participate in all hearings, permanency conferences, scheduled visitations, and requested meetings.
C. Trial
Trial was held in February 2017. Mother appeared and was represented by counsel. Father was represented but did not attend personally.
The Department presented testimony from Mother, Wilson, conservatorship caseworker Elizabeth Gardner, and Court Appointed Special Advocate (CASA) Amanda Tucker. The children's attorney ad litem called Lisa McCartney, who had been appointed as a special investigator. Neither parent called witnesses.
The Department's documentary evidence included the parents' service plans, judgments of criminal convictions for both parents, and drug test results for both parents. All of the Department's evidence was admitted without objection. No other party offered documentary evidence.
1. Evidence about removal
Wilson testified to most of the facts in her removal affidavit, including that (1) Mother tested positive for amphetamine and methamphetamine the day Wilson visited Mother and the children at their home, and (2) shortly after the children had been placed with L.S., Mother absconded with them and did not tell Wilson where she was. Mother, too, admitted she snuck away with the children in the middle of the night. Wilson confirmed the facts from her affidavit about the events of the late January day by testifying as follows:
[W]e were told the children were [at an aunt's home]. . . . Mom came the first time and told us that the children's weren't there. Did a lot of yelling. . . . And then Mom left a couple minutes later. Well, later Mom and Dad both showed up to the home. Again, a lot of yelling, arguing. The kids were [led] out of the home by the residents inside the home. Other caseworkers that were there with me attempted to get the children before Mom and Dad could get the children, but there was a scuffle between trying — both ends trying to get the children, but eventually Mom and Dad were able to place the kids in the car and Mom rode off with the children in the car.
2. Evidence about Mother
Mother admitted she has struggled with drug abuse for several years. Early in this case, Mother tested positive for amphetamine and methamphetamine. Caseworker Elizabeth Gardner testified Mother failed to submit to later drug tests requested by the Department, though she was required to do so under her service plan. Her refusals are considered positive results under Department policy. Gardner further testified Mother has not completed any of her service plan's other requirements.
At the time of trial, Mother was in custody for the aggravated assault of her mother (Grandmother) in July 2016, during the middle of this case. She was accused of going to Grandmother's house, where the family was hosting a party, and stabbing Grandmother during an argument. The record suggests Mother fled and could not be found until November 2016, at which time she was arrested for the assault. Mother denied assaulting Grandmother but testified she had reached a plea-bargain agreement with the State under which she would plead guilty and be placed on probation for five years. She was waiting for that agreement to take effect. Mother has criminal history dating back at least to 2008. The record contains judgments of conviction for possession of marijuana, criminal mischief, prostitution, and retaliation.
Mother has significant history with the Department. First, Jack was removed from Mother at his birth in March 2012 due to Mother's drug use during pregnancy. The Department ruled that referral as "unable to determine; risk indicated." Second, when Jack was a month old, the Department received a new referral alleging negligent supervision of Jack by Mother, Father, and Grandmother. Over the duration of those cases, Mother tested positive for marijuana, cocaine, and benzodiazepines. That referral was ruled "reason to believe; risk indicated." Third, in February 2014, the Department investigated allegations that an unrelated adult physically abused Jack and the parents failed to adequately supervise Jack and Jenny. Mother refused to cooperate with the Department for several months. In May 2014, she tested positive for marijuana and cocaine. The allegations of physical abuse were ruled out, but the allegations of negligent supervision were ruled "unable to determine; family uncooperative."
Mother testified she has been diagnosed with "bipolar schizophrenia." There are periods of time during which she does not take her prescribed medication. She said she was not taking her medication at the time she went to Grandmother's house in July. Mother said she had been accepting medication since she was taken into custody in November. She believed the combination of medicines was effective and said, "[T]his time I am ready to get myself right."
Once released from custody, Mother planned to check in to Santa Maria Hostel, a residential treatment center. She wanted the children to be placed with Grandmother while she was in treatment, and Mother promised not to go to Grandmother's house or otherwise disrupt the placement. Mother did not have a home for her and the children after she is discharged; she said her family can help her with housing.
3. Evidence about the children
The Department placed Jack and Jenny with Mother's sister (Aunt) upon removing them in February 2016. However, Aunt improperly allowed Mother to have access to the children. As a result, the Department had to move them. Jack and Jenny were placed in foster care in March 2016.
Both children had special needs for their emotional health. Gardner testified Jack was "very emotional" and took Clonidine. Jenny was aggressive; she bit, hit, and used profanity. Both children had been in therapy since the case began. According to Gardner, the therapist said the children's behaviors had not changed. Gardner opined that termination of Mother's and Father's parental rights was in Jack's and Jenny's best interest because neither parent was protective of the children, both parents had extensive criminal history, and neither parent had shown any improvement since the case began.
CASA Amanda Tucker testified at length about the children. Tucker believed they suffered from attachment disorder and problems relating to having been neglected. When Tucker first met the children, they were "all over the place," violent, and used profanity.
Tucker said the children's foster home was a very good placement for them because it gave them a stable and structured environment. Still, after each visit with Mother in the first few months of the case, the children would backslide in their progress. Tucker testified:
[T]he children were exhibiting really poor behaviors and extra violence and extra cursing when they returned [from] visits with the mother which made it difficult on the foster mother to — it would take days to get them back into order and to get the school back in place.
The children had not seen Mother in at least six months at the time of trial. Tucker reported they have been "much more consistent." She believed being away from Mother was beneficial to the children. That positive impact, coupled with the parents' failure to satisfy any of the requirements of their family service plans, made Tucker believe termination of the parents' rights was in the children's best interest
Special investigator Lisa McCartney testified that Jack and Jenny need stability, structure, and permanency. She continued:
[P]art of their problems are because they've had no stability or structure in their life and they have been moved from placement to placement. . . . And these kids need to know where they are going to wake up every morning, who their mom and dad is, and to be able to get the love and attention they need on a consistent basis.
McCartney believed it was in the children's best interest for their parents' rights to be terminated. Retaining the Department as the children's conservator without terminating the parents' rights was not in Jack's or Jenny's best interest because they could not be adopted. Rather, they would remain in foster care, where there was no guarantee of stability.
In McCartney's opinion, adoption by a relative was not in the children's best interest. She testified, "I think they need a fresh start and a permanent family that is outside all of the family members in order for them to thrive and function in society."
At the time of trial, the Department had conducted a nationwide search for adoptive parents but had not yet identified suitable candidates. Despite the children's special needs, McCartney was sure such parents could be found if the children were adoptable.
4. Trial court's findings
The trial court found termination of Mother's and Father's parental rights was in the children's best interest and was justified under several subsections of section 161.001(b)(1) of the Family Code: D and E (both concerning endangerment), N (constructive abandonment), and O (failure to comply with a court-ordered service plan). The trial court appointed the Department to be the children's managing conservator. Mother timely appealed.
ANALYSIS
I. Burden of proof and standards of review
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); In re S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Although parental rights are of constitutional magnitude, they are not absolute. The child's emotional and physical interests must not be sacrificed merely to preserve the parent's rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "'Clear and convincing evidence' means 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 2014); accord J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review. S.R., 452 S.W.3d at 358.
Parental rights can be terminated upon clear and convincing evidence that (1) the parent has committed an act described in section 161.001(b)(1) of the Family Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b). Only one predicate finding under section 161.001(b)(1) is necessary to support a decree of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
In reviewing the legal sufficiency of the evidence in a termination case, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. We assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence a reasonable fact finder could disbelieve. J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266.
In reviewing the factual sufficiency of the evidence, we consider and weigh all the evidence, including disputed or conflicting evidence. See J.O.A., 283 S.W.3d at 345. "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." J.F.C., 96 S.W.3d at 266. We give due deference to the fact finder's findings, and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). The fact finder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109. We are not to "second-guess the trial court's resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible." In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
II. Predicate ground for termination: Endangerment (subsection E)
Although Mother's statement of her first through fourth issues includes challenges to the trial court's findings on subsections D, E, N, and O of section 161.001(b)(1) of the Family Code, in the argument section of her brief she concedes the sufficiency of the evidence to support each finding. An unchallenged fact finding is binding on us "unless the contrary is established as a matter of law, or if there is no evidence to support the finding." McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); see In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (unchallenged findings of fact supported termination under subsection O because record supported those findings); In re C.N.S., No. 14-14-00301-CV, 2014 WL 3887722, *7 (Tex. App.—Houston [14th Dist.] Aug. 7, 2014) (mem. op.) (same).
We conclude the record supports the finding that termination is proper under subsection E. Accordingly, we do not review the findings regarding subsections D, N, or O. See A.V., 113 S.W.3d at 362.
A. Legal standards
Subsection E of Family Code section 161.001(b)(1) requires clear and convincing evidence 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." Tex. Fam. Code Ann. § 161.001(b)(1)(E). "To endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); S.R., 452 S.W.3d at 360. "Conduct" includes acts and failures to act. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
A finding of endangerment under subsection E requires evidence the endangerment was the result of the parent's conduct, including acts, omissions, or failures to act. Id. Termination under subsection E must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. Id. A court properly may consider actions and inactions occurring both before and after a child's birth to establish a "course of conduct." In re S.M., 389 S.W.3d 483, 491-92 (Tex. App.—El Paso 2012, no pet.). While endangerment often involves physical endangerment, the statute does not require that conduct be directed at a child or that the child actually suffer injury. Rather, the specific danger to the child's well-being may be inferred from the parent's misconduct alone. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.—Fort Worth 2004, pet. denied). A parent's conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.—Fort Worth 2013), aff'd, 437 S.W.3d 498 (Tex. 2014).
The parent's conduct both before and after the Department removed the child from the home is relevant to a finding under subsection E. See Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no writ) (considering persistence of endangering conduct up to time of trial); In re A.R.M., No. 14-13-01039-CV, 2014 WL 1390285, at *7 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (considering criminal behavior and imprisonment through trial).
B. Application
Drug use. A parent's continuing substance abuse can qualify as a voluntary, deliberate, and conscious course of conduct endangering the child's well-being. See J.O.A., 283 S.W.3d at 345; In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); S.R., 452 S.W.3d at 361-62. By using drugs, the parent exposes the child to the possibility that the parent may be impaired or imprisoned and, therefore, unable to take care of the child. See Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Continued illegal drug use after a child's removal is conduct that jeopardizes parental rights and may be considered as establishing an endangering course of conduct. Cervantes-Peterson v. Tex. Dep't of Family & Protective Servs., 221 S.W.3d 244, 253-54 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en banc).
In the five years leading up to trial, Mother has tested positive for marijuana, cocaine, benzodiazepines, amphetamine, and methamphetamine. She also refused to submit to random drug tests during this case; her refusal is considered a positive result under Department policy.
Untreated mental illness. Mental illness alone is not grounds for terminating the parent-child relationship. S.R., 452 S.W.3d at 363. Untreated mental illness can expose a child to endangerment, however, and is a factor the court may consider. Id.; see In re L.L.F., No. 02-11-00485-CV, 2012 WL 2923291, *15 (Tex. App.—Fort Worth July 19, 2012, no pet.) (mem. op.) (considering parent's failure to take medication to treat mental health issues as factor in creating environment that endangers child's emotional or physical well-being); In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (considering parent's mental health and noncompliance with medication schedule as factors in endangering child).
Mother testified she has been diagnosed with "bipolar schizophrenia." She admitted not taking her medication regularly. She did not take her medication the day she allegedly stabbed Grandmother, and she suggested her not taking her medicine caused her to go to Grandmother's house in the first place.
Criminal activity. Evidence of criminal conduct, convictions, or imprisonment is relevant to a review of whether a parent engaged in a course of conduct that endangered the well-being of the child. S.R., 452 S.W.3d at 360-61; A.S. v. Tex. Dep't of Family & Protective Servs., 394 S.W.3d 703, 712-13 (Tex. App.—El Paso 2012, no pet.). Imprisonment alone does not constitute an endangering course of conduct but is a fact properly considered on the endangerment issue. Boyd, 727 S.W.2d at 533-34. Routinely subjecting a child to the probability that he will be left alone because his parent is in jail endangers the child's physical and emotional well-being. S.M., 389 S.W.3d at 492.
Mother's criminal history since 2008 is largely undisputed. She denied committing aggravated assault against Grandmother but planned to plead guilty so she would be placed on probation for five years. If she violates the terms of her probation, the criminal court may revoke her probation and order her imprisoned.
Conclusion. The evidence of Mother's drug use, untreated mental illness, and criminal activity amply supports the trial court's unchallenged finding of endangerment under subsection E. Accordingly, we are bound by that finding. E.C.R., 402 S.W.3d at 249; McGalliard, 722 S.W.2d at 696. We overrule Mother's issues one through four.
III. Best interest
Mother's fifth issue challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of her parental rights is in the children's best interest.
A. Legal standards
Termination must be in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(2). Prompt, permanent placement of the child in a safe environment is also presumed to be in the child's best interest. Id. § 263.307(a). There is a strong presumption that the best interest of a child is served by keeping the child with the child's parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam).
Courts may consider the following non-exclusive factors in reviewing the sufficiency of the evidence to support the best-interest finding: the desires of the child; the physical and emotional needs of the child now and in the future; the emotional and physical danger to the child now and in the future; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the child; the plans for the child by the individuals or agency seeking custody; the stability of the home or proposed placement; acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). As noted, this list of factors is not exhaustive, and evidence is not required on all the factors to support a finding that termination is in the child's best interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see also Tex. Fam. Code Ann. § 263.307(b) (setting out factors to be considered in evaluating a parent's willingness and ability to provide the child with a safe environment).
B. Application
1. The children
Desires and needs. No evidence was presented about the children's desires. When a child is too young to express his desires, the fact finder may consider that the child has bonded with the foster family, is well cared for by them, and has spent minimal time with a parent. L.G.R., 498 S.W.3d at 205; In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
The children had special needs for their emotional health. Though they still struggled at the time of trial, they were said to be improving due to (1) the consistency, stability, and structure afforded by the foster home, and (2) not seeing Mother.
Department's plan for the children. As of the time of trial, the Department had initiated a nationwide search for adoptive parents for Jack and Jenny. McCartney was confident such parents could be identified if the parents' rights were terminated and the children were adoptable.
2. Mother
Endangerment. As detailed above, Mother endangered her children by abusing drugs, not adhering to treatment for her mental illness, and engaging in criminal activity. That endangerment is relevant to the children's best interest. See S.R., 452 S.W.3d at 366.
Failure to comply with court-ordered services. The evidence is undisputed that Mother did not complete all of her court-ordered services. Her failure to do so is also relevant to the best-interest analysis. See E.C.R., 402 S.W.3d at 249.
Unwillingness to parent. The record suggests Mother fled after stabbing Grandmother in July, and she was not located until November. During that time, Mother had no contact with and provided no support for the children. Her flight and failure to provide for the children is evidence of her unwillingness to parent Jack and Jenny. See In re J.E., Jr., No. 14-16-00850-CV, 2017 WL 1274081, at *7 (Tex. App.—Houston [14th Dist.] April 4, 2017, pet. denied) (mem. op.) (considering parent's lack of involvement in child's life after child was removed as evidence relevant to best-interest analysis).
3. Conclusion on best interest
Considering all the evidence in the light most favorable to the best-interest finding, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of Mother's parental rights was in the best interest of the children. See J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. Further, in light of the entire record, we conclude the disputed evidence the trial court could not reasonably have credited in favor of its best-interest finding is not so significant that the court could not reasonably have formed a firm belief or conviction that termination of Mother's rights was in the children's best interest. Accordingly, the evidence is legally and factually sufficient to support the trial court's finding that termination is in the best interest of the children. We overrule Mother's fifth issue.
CONCLUSION
We affirm the trial court's judgment.
/s/ Tracy Christopher
Justice Panel consists of Justices Christopher, Brown, and Wise.