Opinion
NO. 01-17-00057-CV
06-06-2017
IN THE INTEREST OF K. W. G.
On Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2015-07295J
MEMORANDUM OPINION
This is an accelerated appeal from a decree terminating parental rights. The mother concedes the sufficiency of the evidence on all predicate findings but asserts that the evidence is legally and factually insufficient to show that termination was in the best interest of her child. See TEX. FAM. CODE § 161.001(b)(2). We hold that there is sufficient evidence to support the trial court's decree and therefore affirm.
Background
The child who is the subject of this suit, K.W.G. (pseudonymously referred to as "Kevin"), was born in August 2014. The Department of Family and Protective Services intervened in December 2015 when it received reports that Kevin's mother ("Mother") was homeless and engaging in prostitution. Mother tested positive for methamphetamines and amphetamines, and Kevin was removed from her care.
Mother was offered a family service plan by the Department that specified an initial permanency goal of family reunification. The plan listed several requirements that Mother would have to meet for reunification, including that Mother attend parenting classes, submit to drug tests, participate in substance-abuse counseling sessions, and refrain from any illegal criminal activity. Mother signed the family service plan, acknowledging that her parental rights might be terminated if she was unwilling or unable to comply with the plan, which was designed to provide her child with a safe environment. The trial court ordered that she comply with the terms of the family service plan and notified her that failure to fully comply may result in termination of her parental rights. See id. § 161.001(b)(1)(O). The plan period began in January 2016.
Mother was arrested four months later for possession of narcotics. During the four months before her arrest, Mother did not appear at any of the five drug tests scheduled under her family service plan. Nor did she complete or even begin any of the other plan requirements. She was convicted and spent the next seven months in jail. While in jail, she completed a parenting class, but she failed to take steps toward any of the other plan requirements. Mother was released from jail about one month before the termination hearing.
At the hearing, Mother admitted that she had been "on drugs," "very depressed," and "in a very abusive relationship" before her arrest. She stated that she has a substance abuse problem that she would like help addressing. Mother testified that she has begun to address the items detailed in her family service plan since her release from jail.
The Department caseworker, Regina Taylor-Evans, testified that Mother never took any steps toward complying with her family service plan during the four months before her arrest. Mother agreed that she had not performed any services or attended any court hearings during those four months but explained that she had been regularly consuming drugs at that time and that she did complete a parenting class—one of the plan requirements—while in jail.
The Department also presented evidence of Mother's lengthy criminal record, which included three felony drug convictions, a felony theft conviction, two convictions for driving while intoxicated, and an assault conviction, among others. There also was evidence of an arrest for aggravated assault in March 2016, while her family plan was in place, but that charge had not been finally resolved by the trial date. Mother was not asked nor did she testify about her criminal history.
The aggravated-assault indictment alleges that Mother used a blow-torch as a deadly weapon to burn a complainant in March 2016.
Taylor-Evans also testified about Kevin's current living arrangements. At the time of trial, he was two years old. He had been living with foster parents for the past seven months. According to Taylor-Evans, the current foster parents were adequately providing for Kevin's physical and emotional needs and wanted to adopt him and provide him a permanent, stable home.
Taylor-Evans testified that termination of Mother's parental rights was in Kevin's best interest because a permanent placement was available, the foster parents were willing and able to provide Kevin with a safe and stable environment, Mother had a long history of drug use and incarcerations, there was evidence that Mother engaged in violent behavior during the pendency of the case that could subject her to additional incarceration, and Mother failed to comply with the terms of her family services plan.
The trial court terminated Mother's parental rights after finding that the Department proved by clear and convincing evidence that Mother had engaged in conduct that endangered Kevin, constructively abandoned Kevin, and failed to comply with her court-ordered plan, and that termination was in Kevin's best interest. See TEX. FAM. CODE §§ 161.001(b)(1)(E), (N), and (O), 161.001(b)(2). Mother appealed.
The trial court also terminated the parental rights of the "unknown father." There is no appeal of that termination.
Sufficiency of the Evidence Supporting Termination
Mother challenges the legal and factual sufficiency of the evidence supporting termination of her parental rights.
A. Burden of proof and standard of review
A parent's right to the "companionship, care, custody, and management" of her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Nonetheless, "the rights of natural parents are not absolute," and "[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may forfeit her parental rights by her acts or omissions, the primary focus of a termination suit is the protection of the child's best interest. In re A.V., 113 S.W.3d at 361.
In a suit to terminate parental rights under Section 161.001 of the Family Code, the Department must establish by clear and convincing evidence that (1) the parent committed one or more of the enumerated acts or omissions justifying termination and (2) termination is in the best interest of the child. TEX. FAM. CODE § 161.001(b)(1)-(2). Clear and convincing evidence is "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." Id. § 101.007. Only one predicate finding under Section 161.001(b)(1) is necessary to support a judgment 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 at 362.
In a legal-sufficiency review in a termination case, we look at all 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 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, disregarding all evidence that a reasonable factfinder could have disbelieved or found incredible. Id.
When conducting a factual-sufficiency review, we consider and weigh all the evidence, including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). "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." In re J.F.C., 96 S.W.3d at 266-67. We defer to the factfinder's findings and cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
B. Predicate findings
Although Mother structures her brief to challenge all three predicate findings, she ultimately concedes that the evidence is legally and factually sufficient to support termination under each and all of the three bases for termination specified in the termination order. See TEX. FAM. CODE § 161.001(b)(1)(E), (N), & (O). Accordingly, she effectively limits herself to challenging the sufficiency of the evidence that termination was in Kevin's best interest. See In re B.A.B., No. 01-16-00360-CV, 2016 WL 5480627, at *2 (Tex. App.—Houston [1st Dist.] Sept. 29, 2016, pet. denied) (mem. op.) (not reviewing legal or factual sufficiency of evidence on any predicate finding because parent appealing termination conceded one predicate finding and only one predicate finding is necessary to support termination if there is also finding that termination is in child's best interest); see TEX. FAM. CODE § 161.001(b)(2).
C. Best-interest finding
Mother contends that it is in her child's best interest to remain in her custody in that her past parental deficiencies "were not her fault."
In determining whether termination of parental rights is in a child's best interest, we consider several non-exclusive factors, including (1) the child's desires, (2) the current and future physical and emotional needs of the child, (3) the current and future physical danger to the child, (4) the parental abilities of the person seeking custody, (5) the availability of programs to assist the person seeking custody in promoting the best interest of the child, (6) the plans for the child by the person seeking custody, (7) the stability of the home, (8) any acts or omissions of the parent that may indicate that the parent-child relationship is improper, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
The Department is not required to prove that each Holley factor supports the termination of parental rights, and the absence of evidence on one or more factors does not preclude the factfinder from reasonably forming a strong conviction that termination is in the child's best interest, particularly if the evidence is undisputed that the parental relationship endangered the safety of the child. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Thus, evidence that establishes a predicate act under Section 161.001(b)(1), including child endangerment, may be probative of the best-interest issue. Id. at 28. And when a parent does not challenge a predicate finding, we are bound by that finding as it relates to our best-interest analysis. See In re K.L.G., No. 14-09-00403-CV, 2009 WL 3295018, at *2 (Tex. App.— Houston [14th Dist.] Oct. 15, 2009, no pet.) (mem. op.) (noting that trial court's findings are binding on appeal if not challenged by appellant).
"Intentional criminal activity that exposes a parent to incarceration is conduct that endangers both the physical and the emotional well-being of a child." In re V.V., 349 S.W.3d 548, 554 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); see Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) ("[I]mprisonment is certainly a factor to be considered by the trial court on the issue of endangerment."). Evidence of repeated arrests and incarcerations can support a trial court's conclusion that termination is in the child's best interest. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.).
Mother had multiple felonies, some of which were for possession of narcotics and driving under the influence. In addition to these past arrests and incarcerations, Mother was arrested during the pendency of this suit for aggravated assault; that charge has not been finally resolved but could lead to additional confinement in the future, which would leave Mother unable to provide for Kevin's needs. See In re T.G.R.-M., 404 S.W.3d 7, 15 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (noting that each time mother was jailed, she was absent from child's life and unable to provide for child's physical and emotional needs); In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (observing that parent's repeated commission of criminal acts subjecting him to possibility of incarceration can negatively impact child's emotional well-being).
In addition to her criminal history, Mother's history of drug abuse is probative of whether termination of Mother's parental rights is in Kevin's best interest. See In re G.A., No. 01-11-00565-CV, 2012 WL 1068630, at *6 (Tex. App.-Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem. op.) (parent's drug use can endanger child's physical or emotional well-being and indicates instability in home environment); see also In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (concluding that past and ongoing drug use weighed in favor of conclusion that termination of parental rights is in child's best interest).
Mother has three felony convictions for possession of narcotics between the years 2011 and 2013. She tested positive for methamphetamines and amphetamines when Kevin was removed from her care. She did not appear for any of the five drug tests scheduled under her family plan before her arrest. And she failed to enroll in the required substance-abuse counseling, which might have afforded her the skills to address her history of drug use.
"[I]t is proper to measure a parent's future conduct by his or her past conduct to determine whether termination is in the child's best interest." In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.). The evidence of Mother's illicit drug use, criminal history, and failure to complete her family service plan supports the trial court's finding that termination of Mother's rights is in Kevin's best interest under multiple Holley factors, including the emotional and physical needs of the child, physical danger to the child, parental abilities, and instability of the home. See In re G.A., 2012 WL 1068630, at *6.
In addition to the Holley factors, the Family Code sets out items relevant to evaluating a parent's willingness and ability to provide her child with a safe environment. See TEX. FAM. CODE § 263.307(b). These include the child's age and physical and mental vulnerabilities; 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; and whether the child's family demonstrates adequate parenting skills, including providing the child with minimally adequate health and nutritional care, a safe physical home environment, and an understanding of the child's needs and capabilities. Id.; see In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (noting Section 263.307 factors' relevance to best-interest analysis).
According to the Department, the man Mother identified as Kevin's father was excluded through paternity testing. The only family member Mother identified as a possible source of support was her sister. But the sister was disqualified from caring for Kevin because she tested positive for "bath salts" during the Department's placement investigation. Thus, there is no evidence that Mother has any family support available to her. This suggests that the only family that might be relevant under the Section 263 factors is Mother.
Mother's history of drug use and criminal activity indicates a lack of stability or skills to provide for Kevin's physical and emotional well-being. Mother failed to overcome evidence of instability and endangerment by not completing her family plan or avoiding additional criminal entanglements.
Viewing the evidence in the light most favorable to the finding, we hold that a reasonable factfinder could have formed a firm belief or conviction that termination of Mother's parental rights is in the best interest of the child. We, therefore, hold that the evidence is legally and factually sufficient to support the trial court's finding that termination of Mother's parental rights is in Kevin's best interest.
Conclusion
Having overruled Mother's only issue she did not concede, we affirm.
Harvey Brown
Justice Panel consists of Justices Higley, Bland, and Brown.