Opinion
04-22-00150-CV
08-24-2022
IN THE INTEREST OF K.V.C., a Child
From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2021PA00561 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Irene Rios, Justice
Appellants Mother and Father appeal the trial court's order terminating their parental rights to their child, Kayla. Father and Mother challenge the sufficiency of the evidence supporting the trial court's finding that termination was in Kayla's best interest. Father also challenges the sufficiency of the evidence supporting the statutory ground for termination. In his third issue, Father argues-because the termination of his parental rights was based on insufficient evidence- the trial court's conservatorship determination was an abuse of discretion. We affirm.
To protect the identity of a minor child in an appeal from an order terminating parental rights, we refer to the parents as "Mother" and "Father" and the child using the pseudonym "Kayla" or as "the child." See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2). The trial court's order terminated both Mother's and Father's parental rights to the child.
Background
The Department of Family and Protective Services ("the Department") initially became involved in the underlying case on February 11, 2021, when it received a referral stating Kayla's meconium tested positive for amphetamines at birth. Mother was accepted into a residential treatment program that allowed her to keep the child while she addressed her substance abuse. Mother left the program to receive medical treatment for a hematoma. Once Mother was discharged from the hospital, she was allowed to return to the residential treatment program but failed to do so. On March 31, 2021, the Department received a second referral alleging Mother was drinking hand sanitizer in the shower and Father was dosing Mother with Trazadone and Ambien.
According to the Department, Father was dosing Mother with the drugs so she would fall asleep and not breastfeed the child.
On April 1, 2021, the Department filed a petition seeking temporary managing conservatorship of Kayla and termination of Mother's and Father's parental rights. The trial court granted the Department temporary managing conservatorship, and the Department placed Kayla in foster care.
On February 23, 2022, the trial court held a bench trial. The trial court heard testimony from: Carlos Castillo, Father's counselor; Tricia Boone, Mother's counselor; Stacy Jolliffe, a Department supervisor; Norma Lailson, the Department's caseworker; Mother; and Father.
On February 25, 2022, the trial court signed an order terminating Mother's and Father's parental rights to Kayla. Specifically, the trial court terminated Mother's parental rights based on statutory grounds (O) and (R), and Father's parental rights based on statutory ground (O) in section 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1) (O), (R). The trial court also found that it was in Kayla's best interest to terminate Mother's and Father's parental rights. See id. § 161.001(b)(2). Mother and Father appeal.
Statutory Requirements and Standard of Review
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b). 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.
When reviewing the sufficiency of the evidence, we apply well-established standards of review. See id. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (conducting a factual sufficiency review); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (conducting a legal sufficiency review).
"In reviewing the legal sufficiency of the evidence to support the termination of parental rights, 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.'" In re J.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *2 (Tex. App.-San Antonio Nov. 1, 2017, pet. denied) (mem. op.) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. "A corollary to this requirement is that a [reviewing] court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.
"In reviewing the factual sufficiency of the evidence to support the termination of parental rights, we 'must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.'" J.L.B., 2017 WL 4942855, at *2 (quoting J.F.C., 96 S.W.3d at 266). "A [reviewing court] should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266. "The [reviewing] court must hold the evidence to be factually insufficient if, in light of the entire record, the disputed evidence contrary to the judgment is so significant that a reasonable factfinder could not have resolved that disputed evidence in favor of the ultimate finding." In re M.T.C., No. 04-16-00548-CV, 2017 WL 603634, at *2 (Tex. App.-San Antonio Feb. 15, 2017, no pet.) (mem. op.).
Further, in a bench trial, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. HealthTronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 582 (Tex. App.-Austin 2012, no pet.). This is because "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.-Austin 2014, no pet.) (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.)). We, therefore, defer to the trial court's judgment regarding credibility determinations. Coburn, 433 S.W.3d at 823-24.
Statutory Grounds
The trial court terminated Father's parental rights under statutory ground (O) in section 161.001(b)(1) of the Texas Family Code. Father challenges the sufficiency of the evidence supporting this statutory ground.
Assuming a valid best-interest finding, the trial court may order termination of the parent-child relationship if the trial court finds by clear and convincing evidence that the parent has "failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the [Department] for not less than nine months as a result of the child's removal from the parent under Chapter 262" of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(O).
"Texas courts generally take a strict approach to subsection (O)'s application." In re J.M.T., 519 S.W.3d 258, 267 (Tex. App.-Houston [1st Dist.] 2017, pet. denied). "A parent's failure to complete one requirement of her family service plan supports termination under subsection (O)." Id. (alteration omitted). Partial compliance with a court-ordered service plan does not constitute compliance under statutory ground (O). In re J.M.T., 519 S.W.3d at 267 (alterations omitted) ("[S]ubstantial or partial compliance with a court-ordered family service plan is insufficient to avoid termination."). Ground (O) "does not quantify any particular number of provisions of the family service plan that a parent must not achieve in order for the parental rights to be terminated or the degree of a parent's conduct that will be deemed to be a failure to achieve a particular requirement of the plan." In re B.H.R., 535 S.W.3d 114, 122 (Tex. App.- Texarkana 2017, no pet.).
Subsection 161.001(d), however, precludes termination under subsection (O) if the parent proves by a preponderance of the evidence that: (1) he was unable to comply with specific provisions of the court order incorporating the service plan; and (2) he made a good faith effort to comply with the order and his failure to comply is not attributable to any fault of his own. Tex. Fam. Code Ann. § 161.001(d); In re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019).
Lailson testified Father's service plan required him to participate in and complete individual counseling, maintain stable housing, participate in visits with the child, and pass random drug tests. Father was also to actively participate in domestic violence classes and learn how to maintain appropriate relationships from the classes. These services were ordered by the trial court with an express admonishment in the order stating failure to fully comply with the order could result in termination of Father's parental rights. According to Lailson, Father did not complete individual counseling and only participated in six of the thirteen drug tests requested by the Department.
Father claimed he took more than six drug tests and had pictures of the results showing he took more than six drug tests. However, Father did not introduce evidence substantiating his claim.
Lailson further testified that Father and Mother engaged in domestic violence in October 2021, after Father completed his domestic violence classes. The Department re-referred Father to take additional domestic violence classes in November 2021. Mother expressed to the Department that Father has been an "offender" of previous domestic violence incidents. According to Lailson, officers from the San Antonio Police Department took pictures of Mother's bruises following the October 2021 incident. Father also admitted to assaulting Mother in the past. However, according to Lailson, Father minimized the domestic violence and refused to take the additional classes because the classes were for an "offender" of domestic violence "and he wasn't going to be known as an offender." Father was given information on a domestic violence course for "victims" and began engaging in that course in January 2022, a month before trial.
Father admitted he has not successfully completed domestic violence classes or individual counseling. On appeal, Father does not contend he has complied with the court-ordered services. Instead, Father argues he has not received a reasonable opportunity to comply with his court-ordered services because he has not been given enough time to complete those services.
To avail himself of the affirmative defense in section 161.001(d) of the Texas Family Code, Father had the burden to prove: (1) he was unable to comply with the provisions of the court-ordered family service plan; (2) he made a good faith effort to comply with the order; and (3) his failure to comply was not his fault. See In re Y.M.L., No. 04-19-00168-CV, 2020 WL 1695498, at *4 (Tex. App.-San Antonio Apr. 8, 2020, pet. denied); see also In re L.P., No. 04-22-00015- CV, 2022 WL 2230926, at *4-5 (Tex. App.-San Antonio June 22, 2022, no pet.) (holding Father failed to meet his burden to show he did not have enough time to comply with his service plan).
Here, Castillo, Father's counselor, testified that Father missed counseling sessions in November 2021, December 2021, and January 2022. As mentioned above, Father chose not to reengage in domestic violence classes until January 2022 even though the Department made the referral in November 2021. Although Father claims he took more than six of the thirteen drug tests requested by the Department, he did not provide any proof-aside from his own testimony- showing that he did in fact take more than six drug tests. See HealthTronics, Inc., 382 S.W.3d at 582 (holding, in a bench trial, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony). Even if he was able to provide this proof, Father does not contend that he complied with every one of the Department's drug test requests. See J.F.C., 96 S.W.3d at 278 (holding partial compliance with a court-ordered service plan does not constitute compliance under statutory ground (O)). On appeal, Father claims he did not have enough time to complete his services. However, he failed to explain to the trial court how the missed counseling sessions, delay to reengage in domestic violence classes, and missed drug tests were good faith efforts to comply with his services or otherwise not his fault. As such, sufficient evidence exists to support the trial court's finding that Father failed to prove he was unable to comply with the requirements of his service plan, made a good faith effort to comply with the service plan, and that his shortcomings were not attributed to his own fault. See L.P., 2022 WL 2230926, at *4-5.
Having reviewed the record and considered all the evidence in the appropriate light for each standard of review, we conclude the evidence is legally and factually sufficient to support the trial court's termination findings under subsection 161.001(b)(1)(O) of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(O); H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d at 573.
Best Interests
Mother and Father challenge the sufficiency of the evidence to support the trial court's finding that termination of their parental rights was in the best interest of the child.
When considering the best interest of a child, we recognize the existence of a strong presumption that the child's best interest is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, we also presume that 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 parent is willing and able to provide the child with a safe environment, we consider the factors set forth in section 263.307(b) of the Texas Family Code. See id. § 263.307(b). We also consider the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). "The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." Id. In analyzing these factors, we must focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective & Regul. Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ).
These factors include:
(1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the department; (5) whether the child is fearful of living in or returning to the child's home; (6) the results of psychiatric, psychological, or developmental evaluations of the child [or] the child's parents . . .; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; (9) whether the perpetrator of the harm to the child is identified; (10) 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; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child's family demonstrates adequate parenting skills . . .; and (13) whether an adequate social support system . . . is available to the child.Tex. Fam. Code Ann. § 263.307(b).
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. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).
Evidence that proves one or more statutory ground for termination may also constitute evidence illustrating that termination is in the child's best interest. C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). "A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." See 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 and determine whether termination of parental rights is in the child's best interest." Id.
Emotional and Physical Danger, Harm to the Child, and History of Abusive Conduct
"[E]ndangering conduct is not limited to actions directed towards the child." In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). "It necessarily follows that the endangering conduct may include the parent's actions before the child's birth, while the parent had custody of older children . . . ." Id. "A factfinder may infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent." In re D.M., 452 S.W.3d 462, 471 (Tex. App.-San Antonio 2014, no pet.). "A parent endangers her children by accepting the endangering conduct of other people." In re L.W., No. 01-18-01025-CV, 2019 WL 1523124, at *13 (Tex. App.-Houston [1st Dist.] Apr. 9, 2019, pet. denied). "This court considers a parent's conduct before and after the Department's removal of the children." In re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.-San Antonio 2017, pet. denied).
Here, the trial court heard testimony that Father and Mother have been in a cycle of domestic violence since 2008, when the Department intervened to protect the parents' former children. Mother testified she and Father have assaulted each other since the inception of their twenty-year relationship. Mother admitted she has perpetrated domestic violence against Father and has been arrested three times since the Department removed Kayla from Father and Mother's care. She was arrested twice for domestic violence against a family member-once for assaulting Father and once for assaulting her own mother. After Mother was arrested for assaulting Father, Boone-Mother's counselor-testified that Father posted Mother's bond, picked her up from jail, and took her home. Less than twenty-four hours later, the police responded to another domestic violence call at Mother and Father's home because Father allegedly began punching and hitting Mother while she was in the shower. From this incident, Mother was arrested a third time for violating a protective order.
Mother also claimed Father had engaged in domestic violence against her at least four different times during the pendency of this case. Father admitted to assaulting Mother in the past and told Castillo he may be verbally abusing Mother. Boone testified Mother told her that Father slapped their five-year-old son to whom the parents' parental rights have previously been terminated.
Notwithstanding this cycle of domestic violence between the parents, Father and Mother both maintain they intend to remain in the relationship. According to Castillo, Father minimizes the domestic violence and is "adamant on making [the] relationship [with Mother] work." Castillo testified Father does not see his continued relationship with Mother "as a risk to him, to the family, or to [Kayla]." On one hand, Mother told Boone "she is afraid to leave the relationship because wherever she goes, [Father] will hunt her down[;]" however, on the other hand, Mother testified that remaining in a relationship with Father "is probably the best place for [her]."
Castillo testified it was questionable whether Father could provide a safe home for the child because the repeated history of domestic violence indicates the parents are unable to break the cycle of domestic violence. Boone also opined she did not think it would be safe to return the child to Mother or Father. According to Boone, "[Mother] could not say that there would not be any continued domestic violence" if the child were returned to Father and Mother. Lailson testified neither Father nor Mother are able to provide the child with a home free of abuse and domestic violence.
Based on this evidence, the trial court could have formed a firm belief or conviction that Father and Mother would remain a danger to the child. These factors support the trial court's best interest finding.
History of Substance Abuse
One of the factors to consider in a best interest determination is "whether there is a history of substance abuse by the child's family or others who have access to the child's home[.]" See Tex. Fam. Code Ann. § 263.307(b)(8). Here, the child's meconium tested positive for amphetamines at birth. Mother admitted to using methamphetamines and drinking alcohol during her pregnancy with the child. Jolliffe, the Department supervisor, testified that Father admitted to giving Mother Trazodone and Ambien shortly after the child was born. Jolliffe further testified that Father told her he found mother drinking hand sanitizer in the shower shortly after the child was born.
Despite this history of substance abuse, Mother only participated in three out of the eight drug tests requested by the Department. As mentioned above, Father only participated in six of the thirteen drug tests requested by the Department. Accordingly, the trial court could have formed a firm belief or conviction that this factor weighs in favor of termination.
Willingness to Seek Help and Counseling, Parental Abilities, Programs, and Acts or Omissions
Neither Father nor Mother completed their service plan. As mentioned in the statutory grounds section above, Father failed to complete his individual counseling and domestic violence classes and failed to participate in all of his required drug tests. Mother also failed to complete her individual counseling and domestic violence classes and failed to participate in all of her required drug tests. While Father and Mother did complete some services, Lailson testified she was not satisfied with Father and Mother's progress on their services because, "[e]ven after engaging in services and attempting to work services, the issues that led to removal are still present." Lailson opined she did not think giving the parents additional time to complete services would help because Mother and Father continued to engage in domestic violence as recently as four months before trial. Lailson stated Father has minimized the domestic violence and Mother continues to engage in domestic violence. Accordingly, the trial court could have formed a firm belief or conviction that these factors weigh in favor of termination.
Plans for the Child and Physical and Emotional Needs of the Child
"[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." Tex. Fam. Code Ann. § 263.307(a). "The need for permanence is the paramount consideration for the child's present and future physical and emotional needs." S.J.R.-Z., 537 S.W.3d at 693.
While the trial court heard testimony that the child is bonded with Father and Mother and visits have gone well, the trial court also heard testimony that it would not be safe to return the child to Father and Mother's care. In contrast, Lailson testified the child has been in the same foster home since removal. Lailson stated Kayla is thriving in the foster home placement, the foster family is providing "all her medical and basic needs[,]" and Kayla is in a "loving and caring" environment that is free of domestic violence. Lailson further testified that the long-term plan is for Kayla to be adopted by her foster family. Because Kayla's current placement will provide her with permanency-as opposed to the environment of domestic violence created by Father and Mother-the trial court could have formed a firm belief or conviction that these factors also weigh in favor of termination.
Having reviewed the record and considered all the evidence in the appropriate light for each standard of review, we conclude the trial court could have formed a firm belief or conviction that termination of Father's and Mother's parental rights is in Kayla's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2); H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d at 573; see also generally In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (recognizing a reviewing court need not detail the evidence if affirming a termination judgment). Accordingly, we hold the evidence is legally and factually sufficient to support the trial court's best-interest findings.
Conservatorship
In his third issue, Father argues he should be named a possessory conservator of the child if the trial court's parental termination findings are based on insufficient evidence. However, because we have determined the trial court did not err in terminating Father's parental rights, Father no longer has any legal rights with respect to the child and cannot challenge the portion of the termination order that relates to appointment of conservators for the child. See In re J.C.R., No. 04-18-00949-CV, 2019 WL 2110109, at *7 (Tex. App.-San Antonio May 15, 2019, pet. denied) (mem. op.); In re E.O.R., No. 04-18-00248-CV, 2018 WL 5808293, at *5 (Tex. App.- San Antonio Nov. 7, 2018, no pet.) (mem. op.); In re L.T.P., No. 04-17-00094-CV, 2017 WL 3430894, at *6 (Tex. App.-San Antonio 2017, pet. denied) (mem. op.).
Conclusion
The trial court's judgment is affirmed.