Opinion
04-22-00724-CV
03-29-2023
IN THE INTEREST OF K.A.W., K.G.G., and N.A.G., Children
From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2021PA01580 Honorable Raul Perales, Judge Presiding.
Sitting: Rebeca C. Martinez, Chief Justice, Irene Rios, Justice, Beth Watkins, Justice.
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice.
Appellant A.R.S. ("Mother") appeals from the trial court's order terminating her parental rights to K.A.W., K.G.G., and N.A.G. Mother challenges the sufficiency of the evidence to support the trial court's finding on two statutory grounds for termination under Texas Family Code section 161.001 and its finding that termination is in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b). We affirm.
To protect the identities of the minor children in this appeal, we refer to the parents and the children by their initials. See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Background
This case began on September 9, 2021, when the Texas Department of Family and Protective Services (the "Department") filed a petition to terminate the parental rights of Mother and the two fathers, D.R.W. and A.C.G. D.R.W. is K.A.W.'s father; K.A.W. was sixteen at the time of trial in October 2022. A.C.G. is K.G.G. and N.A.G.'s father; these children were eleven and ten, respectively, at the time of trial. On September 9, 2021, the trial court also ordered the children removed from their parents' care and named the Department as temporary sole managing conservator of the children. Later, the trial court ordered each parent to submit to a psychological or psychiatric evaluation, attend counseling sessions, successfully complete parenting classes, submit to a drug and alcohol dependency assessment, submit to drug tests, and comply with each requirement set out in the Department's service plan for the parent. The Department's service plans for the parents generally restate these requirements.
At trial, on October 27, 2022, Mother, A.C.G. and the Department's caseworker testified. Mother testified in support of her motion for a continuance that she was under the impression that she had until March 2023 to "work services" required by the trial court and the Department's service plan. When asked, on cross-examination, "[W]hen did you decide you were willing to work services," Mother responded, "I guess yesterday." Mother also stated that the reason she had not submitted to any drug tests was because, "I just don't feel like it's necessary, I just really don't. [The Department] can spend the money for something else." Nevertheless, Mother testified that she was willing to drug test in order to obtain additional time to "work services." She also testified that beginning in October, she engaged in a weekly "wellness" group. The Department's caseworker clarified in his testimony that Mother's reference was to a "wellness center," which is "not a center that she's engaged in"; instead, according to the caseworker, it is a visitation site, and Mother made four visits the month before trial. The trial court denied Mother's motion for a continuance.
March 2023 would mark eighteen months since the trial court appointed the Department as the children's temporary managing conservator and, therefore, it marked the last month the trial court could retain the case on its docket. See Tex. Fam. Code Ann. § 263.401 (providing for automatic dismissal of a case on the first anniversary of the appointment of the Department as temporary managing conservator, with one 180-day extension allowed under "extraordinary circumstances").
After Mother, the Department's caseworker testified. He testified that he began working on the case in February 2022. He further testified that the children were removed from Mother's and A.C.G.'s care in September 2021 because Mother "decided not to pick the [two youngest] kids up from school." At that time, the oldest child had not been in school for a year and a half. According to the caseworker, Mother "was in a bad place." Additionally, the caseworker "kn[e]w the home wasn't a great home for the kids to be in." He testified that the "dangerous condition of the home" was "[t]here was no power, no water" and "[i]t had rats." According to the caseworker, the children "were not in good physical shape when they came into [the Department's] care."
The caseworker testified that Mother did not complete any of her court-ordered services, despite their availability. According to the caseworker, "mental health" and possible drug use were "the biggest issue[s] that [the Department] had." The caseworker "kn[e]w [Mother] had a few appointments on her own for her mental health," but he never received any "results" from these appointments. Mother also never submitted to any drug tests that the caseworker requested, and Mother did not take advantage of counseling programs the Department made available to her, including a mental-health assessment.
According to the caseworker, the children are intelligent and the oldest is "very mature for her age." The oldest, K.A.W., had returned to school since entering the Department's care. Several months before trial, she moved to New York to live with her maternal aunt and the aunt's family. K.A.W.'s biological father, D.R.W., had not seen K.A.W. since she was a child, and he had not engaged in services during the case. According to the caseworker, K.A.W. was "doing well" and making friends. She was "fine with staying" in New York and was "open to her aunt adopting her." At the beginning of the case, K.A.W. "would shut down" and "would constantly defend her mom," but, by the time of trial, the eldest was "a lot more open in having communication" and "she ha[d] not defended her mother" for three or four months. Mother had K.A.W.'s phone number and possibly knew where she lived; therefore, according to the caseworker, it was up to K.A.W. whether to keep communication open.
The two youngest children were living with their father, A.C.G., at the time of trial. The children were "doing great," "doing good in school," and "just enjoying life." They had not voiced a desire to the caseworker to return to Mother, and Mother did not know their physical address. The caseworker testified that he had seen "threatening" text messages Mother sent A.C.G., and "due to animosity between [A.C.G.] and [Mother], . . . [A.C.G.] does not let her know where he lives." According to the caseworker, A.C.G. has "concerns" about his and the children's safety.
A.C.G. testified next that he met Mother in 2010, and they were married in 2014. When asked by Mother's attorney, whether he was "aware that [Mother] has mental health issues," A.C.G. answered, "I am." At the outset of the case, Father had his own "drug and mental health issues," but he completed his court-ordered services, became sober, and reunited with K.G.G., and N.A.G. Father testified that he fears for the safety of his children due to Mother's "instability," her failure to "address[] her mental health," and her "outbursts" by text message. According to A.C.G., Mother attempted to locate the children through electronic tracking of devices in the children's possession. Father testified that K.G.G., and N.A.G. love their Mother, but "they do not like the things that have been going on."
Last, the children's attorney ad litem reported that the two youngest children are "doing very well" with A.C.G and that they "have voiced . . . concerns about their mother finding out where they live and the behaviors that they have seen from her." According to the attorney ad litem, K.A.W. "ha[d] really opened up to her aunt and uncle" and was "doing very well in school," even though she had fallen far behind. The attorney ad litem testified: "She tells me that she does not want to move, that she wants to stay with her aunt. And she is open to adoption by her aunt. . . . I had a long talk with her and she basically is not wanting to engage with her mother at this time." Additionally, the attorney ad litem testified that A.C.G. had ensured regular contact between the two youngest children and their older sister, and the attorney ad litem believed this would continue.
After hearing this testimony, the trial court found that Mother knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger their physical and emotional well-being, see id. § 161.001(b)(1)(D), that she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the children's physical and emotional well-being, see id. § 161.001(b)(1)(E), and that she failed to comply with her court-ordered service plan, see id. § 161.001(b)(1)(O). The trial court also found that termination of Mother's parental rights was in the children's best interest. See id. § 161.001(b)(2). The trial court then signed an order which terminated Mother's and D.R.W.'s parental rights, appointed the Department as permanent managing conservator of K.A.W., and appointed A.C.G. as sole managing conservator of K.G.G. and N.A.G. Only Mother appealed.
Standard of Review
A parent-child relationship may be terminated, pursuant to section 161.001 of the Texas Family Code, only if the trial court finds by clear and convincing evidence one of the predicate grounds enumerated in subsection (b)(1) and that termination is in a child's best interest. See id. § 161.001(b)(1)(2). Clear and convincing evidence requires "proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Id. § 101.007.
We review the legal and factual sufficiency of the evidence under the standards of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). In reviewing the legal sufficiency of the evidence, we must "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." Id. at 266. "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. In reviewing the factual sufficiency of the evidence, we "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." Id. "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.
Predicate Statutory Grounds
The trial court determined that predicate statutory grounds (D), (E), and (O) had been satisfied with respect to Mother. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). Although Mother does not challenge predicate ground (O), Mother's due process and due course of law rights require that we consider Mother's issue as to the trial court's findings under grounds (D) and (E) because these findings may impact future termination proceedings. See In re N.G., 577 S.W.3d 230, 236-37 (Tex. 2019) (per curiam).
Section 161.001(b)(1)(D) allows a trial court to terminate parental rights if it finds by clear and convincing evidence 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." Id. § 161.001(b)(1)(D). Under subsection (D), the trial court examines "evidence related to the environment of the children to determine if the environment was the source of endangerment to the children's physical or emotional well-being," although parental conduct can be a factor that contributes to this environment. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.). "'Environment' refers to the acceptability of living conditions, as well as a parent's conduct in the home." In re S.R., 452 S.W.3d 351, 360 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). "A child is endangered when the environment creates a potential for danger that the parent is aware of but consciously disregards." Id. "[A] parent need not know for certain that the child is in an endangering environment; awareness of such a potential is sufficient." In re R.S.-T., 522 S.W.3d 92, 109 (Tex. App.-San Antonio 2017, no pet.) (citation omitted).
Section 161.001(b)(1)(E) allows a trial court to terminate a parent's rights if the court finds by 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). Under subsection (E), the trial court must determine whether there is evidence that a parent's acts, omissions, or failures to act endangered the child's physical or emotional well-being. See In re J.T.G., 121 S.W.3d at 125.
In the context of both subsection (D) and (E), "endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or mental health. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam); In re J.T.G., 121 S.W.3d at 125. "However, there are some distinctions in the application of subsections (D) and (E)." A.S. v. Tex. Dep't of Family & Protective Servs., 394 S.W.3d 703, 713 (Tex. App.-El Paso 2012, no pet.). First, termination under subsection (D) is permitted based upon only a single act or omission. In re R.S.-T., 522 S.W.3d at 109. On the other hand, under subsection (E), our analysis may not rest on a single act or omission; it must be "a voluntary, deliberate, and conscious course of conduct." Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.-Houston [1st Dist.] 2010, pet. denied) (citation omitted). Second, "[i]n evaluating endangerment under subsection (D), we consider the child's environment before the Department obtained custody of the child." In re S.R., 452 S.W.3d at 360. "Under subsection E, however, courts may consider conduct both before and after the Department removed the child from the home." Id.
We hold the trial court's findings as to predicate grounds (D) and (E) are supported by legally and factually sufficient evidence. Cf. In re J.T.G., 121 S.W.3d at 126 (consolidating analysis regarding statutory grounds (D) and (E) because the grounds are interrelated). Regarding endangering conditions or surroundings, the Department's caseworker testified there was no power or water in Mother's home prior to the children's removal and there were rats. Mother contends that this testimony is conclusory, but the details the caseworker provided - no power, no water, rats - though sparce, provide a basis for his description of the condition of the home as "dangerous." See Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (witness "must explain the basis of his statements to link his conclusions to the facts"); cf. In re H.D.M., No. 09-18-00050-CV, 2018 WL 2974461, at *7 (Tex. App.-Beaumont June 14, 2018, pet. denied) (mem. op.) ("While poverty should not be a basis for termination of parental rights, a parent's inability to provide basic utilities in the family home may constitute evidence of endangerment of the children's well-being.").
In addition, K.A.W. had not been enrolled in school for a year and a half prior to her removal. This failure to keep the child enrolled is evidence of endangering conduct. See In re I.F., No. 01-22-00375-CV, 2022 WL 16640627, at *6 (Tex. App.-Houston [1st Dist.] Nov. 3, 2022, no pet.) (considering failure to keep child enrolled in school as evidence supporting subsection (E) finding); see also In re A.L.S., No. 04-22-00257-CV, 2022 WL 10758757, at *3 (Tex. App.-San Antonio Oct. 19, 2022, pet. denied) ("As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child." (citation omitted)).
The trial court also could have drawn the reasonable inference that Mother's absolute refusal, until the day of trial, to submit to a drug test and her refusal to complete a drug assessment was evidence that Mother abused drugs during the pendency of the case. See In re A.M.L., No. 04-
19-00422-CV, 2019 WL 6719028, at *4 (Tex. App.-San Antonio Dec. 11, 2019, pet. denied) (mem. op.) (explaining trial court could infer drug abuse from parent's failure to submit to drug testing); cf. In re A.C., 560 S.W.3d 624, 632 (Tex. 2018) (factfinder may form firm conviction based on direct evidence and reasonable inferences). "Evidence of illegal drug use supports a conclusion that a child's surroundings endanger his or her physical or emotional well-being." In re A.B.R., No. 04-19-00631-CV, 2020 WL 1159043, at *4 (Tex. App.-San Antonio Mar. 11, 2020, pet. denied) (mem. op). Likewise, "because a parent's illegal drug use exposes her children to the possibility the parent may be impaired or imprisoned, evidence of illegal drug use supports a finding that the parent engaged in a course of conduct that endangered the children's physical or emotional well-being." In re J.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *3 (Tex. App.-San Antonio Nov. 1, 2017, pet. denied) (mem. op.) (citation omitted); see also In re K.J.G., No. 04-19-00102-CV, 2019 WL 3937278, at *5 (Tex. App.-San Antonio Aug. 21, 2019, pet. denied) (mem. op.) ("Evidence that a parent continued to use illegal drugs even though the parent knew her parental rights were at risk is conduct showing a voluntary, deliberate, and conscious course of conduct, which by its nature endangers a child's well-being." (citations omitted)).
We overrule Mother's issue as to the trial court's endangerment findings.
Best Interest
Mother also challenges the trial court's finding that termination of her parental rights was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). There is a strong presumption that keeping a child with a parent is in a child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). However, it is equally presumed that "the prompt and permanent placement of the child in a safe environment is . . . in the child's best interest." Tex. Fam. Code Ann. § 263.307(a). In determining whether a child's parent is willing and able to provide the child with a safe environment, we consider the factors set forth in Texas Family Code section 263.307(b). See id. § 263.307(b).
Our best-interest analysis is guided by consideration of the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include: (1) the child's desires; (2) the child's present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child's best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. See id.; accord In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013). The Department is not required to prove each factor, and the absence of evidence regarding some of the factors does not preclude the factfinder from reasonably forming a strong conviction that termination is in a child's best interest, particularly if the evidence is undisputed that the parent-child relationship endangered the safety of the child. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The focus of our review is whether the evidence, as a whole, is sufficient for the trial court to have formed a strong conviction or belief that termination of the parent-child relationship is in the best interest of the child. Id.
As detailed above, the evidence supports the trial court's endangerment findings. Cf. id. at 28 (explaining that evidence that proves one or more statutory grounds for termination may be probative in proving termination is in child's best interest). Mother's failure to provide a home with water and electricity and to enroll K.A.W. in school is evidence of instability. Cf. In re I.F., 2022 WL 16640627, at *6; In re H.D.M., 2018 WL 2974461, at *7. Illicit drug use is relevant to multiple Holley factors, including the children's emotional and physical needs now and in the future, the emotional and physical danger to the children now and in the future, Mother's parental abilities, the stability of Mother's home, and the acts or omissions which may indicate an improper parent-child relationship. See Holley, 544 S.W.2d at 371-72; See In re A.M.L., 2019 WL 6719028, at *4 (explaining drug use implicates multiple Holley factors).
In addition to the evidence addressed with our analysis on the predicate grounds, the caseworker testified that Mother did not complete any of her court-ordered services, and Mother testified that she decided to engage in service just the day before trial. From this evidence, the trial court reasonably could have inferred that Mother lacked the ability to motivate herself to seek out available resources during the case and into the future. See In re J.M.T., 519 S.W.3d at 270; see also Tex. Fam. Code Ann. § 263.307(b)(10), (11) (providing courts may consider willingness and ability of child's family to seek out, accept, and complete counseling services and willingness and ability of child's family to effect positive environmental and personal changes within reasonable period of time); Holley, 544 S.W.2d at 371-72 (listing parental abilities of individual seeking custody and programs available to assist individual as best-interest factor); cf. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) ("[E]vidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of . . . irresponsible choices."); In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied) ("A trier of fact may measure a parent's future conduct by his past conduct . . . .").
Relatedly, the trial court could infer from mother's inability to address her "mental health issues," including submitting to a psychological or psychiatric evaluation and counseling, that Mother lacked the motivation or ability to effect positive personal changes. See Tex. Fam. Code Ann. § 263.307(b)(10), (11). While the record lacks details, it is uncontested that Mother had "mental health issues" and that Mother had not availed herself of the evaluation and counseling that the trial court required of her. Cf. In re M.C., No. 02-15-00290-CV, 2016 WL 354186, at *4-
Mother's attorney asked A.C.G. at trial whether he was "aware that [Mother] has mental health issues."
5 (Tex. App.-Fort Worth Jan. 28, 2016, no pet.) (mem. op.) (affirming termination where evidence showed a mother refused to treat her ongoing mental health issues or complete court-ordered services).
As relayed by the caseworker and the attorney ad litem, the children did not state a desire to return to Mother's care or to continue a relationship with her, although the two youngest children loved their Mother and K.A.W. initially defended her. Cf. In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.- Texarkana 2003, no pet.) ("[A] child's love of his parents cannot compensate for the lack of an opportunity to grow up in a normal and safe way equipped to live a normal, productive, and satisfying life."). To the contrary, K.A.W. wished to remain in New York and was open to the possibility of adoption by her aunt, and all of the children were thriving in their placements.
We hold the evidence is legally and factually sufficient to support the trial court's finding that termination of Mother's parental rights is in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(b)(2); see also In re A.B., 437 S.W.3d 498, 505 (Tex. 2014) (recognizing appellate court need not detail all evidence if affirming termination judgment).
Conclusion
The trial court's order of termination is affirmed.