Opinion
No. 04-15-00680-CV
03-02-2016
IN THE INTEREST OF L.C.B., a Child
MEMORANDUM OPINION
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-02992
Honorable Richard Garcia, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
This proceeding arises out of Cause No. 2014PA02992, styled In the Interest of L.C.B., a Child, pending in the 407th Judicial District Court, Bexar County, Texas, the Honorable Karen H. Pozza presiding. However, the termination order in this matter was signed by the Honorable Richard Garcia, associate judge of the Children's Court, Bexar County, Texas.
Appellant V.A.L. appeals the trial court's order terminating her parental rights to her child, L.C.B. In her only issue, V.A.L. asserts the evidence was neither legally nor factually sufficient for the trial court to find, by clear and convincing evidence, that terminating her parental rights was in her child's best interest. We conclude the evidence is both legally and factually sufficient, and we affirm the trial court's order.
Both of the names provided by V.A.L. as potential fathers were eliminated as L.C.B.'s biological father. At the time of the hearing, the Department did not have a biological father identified for L.C.B.
FACTUAL AND PROCEDURAL BACKGROUND
On December 9, 2014, the Texas Department of Family and Protective Services received a referral alleging physical abuse of V.A.L.'s newborn son, L.C.B. At the time of L.C.B.'s birth, both V.A.L. and L.C.B. tested positive for marijuana and amphetamines. On December 22, 2014, the Department filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship. On December 29, 2014, the Department filed an amended petition requesting emergency orders alleging a continuing danger to L.C.B.'s physical health and safety if the child was returned to V.A.L.'s custody. The trial court granted the petition and issued emergency orders appointing the Department as temporary sole managing conservator of L.C.B. with the exclusive right to physical possession.
On February 13, 2015, the Department filed a motion requesting a finding of aggravated circumstances pursuant to section 262.2015 of the Texas Family Code. TEX. FAM. CODE ANN. § 262.2015 (West Supp. 2015); In re A.L.H., 468 S.W.3d 738, 744 (Tex. App.—Houston [14th Dist.] 2015, no pet.). The Texas Family Code provides the trial court may waive the requirement of a service plan if it finds the existence of aggravated circumstances. Id. § 262.2015(a). The two relevant aggravating circumstances contained within section 262.2015(b) include the following:
(5) the parent's parental rights with regard to another child have been involuntarily terminated based on a finding that the parent's conduct violated Section 161.001(b)(1)(D) or (E) . . . ; [and]
. . . .
(7) the parent's parental rights with regard to another child of the parent have been involuntarily terminated; . . . .TEX. FAM. CODE ANN. § 262.2015(b). On March 2, 2015, the trial court found aggravating circumstances based on the termination of V.A.L.'s parental rights as to two other children was based on a finding that V.A.L.'s conduct violated Section 161.001(b)(1)(D) or (E) of the Texas Family Code. Id. § 161.001(b)(1)(D), (E).
Texas Family Code sections 161.001(b)(1)(D) and (E) provide as follows:
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E).
(E) 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; . . . .
On October 14, 2015, after several permanency hearings and a bench trial on the merits, the trial court terminated V.A.L.'s parental rights to L.C.B. based on (1) subparagraphs (E), (M), and (R) of section 161.001(b)(1), see id. § 161.001(b)(1)(E), (M), (R), and (2) a determination that such termination was in the child's best interest, see id. § 161.001(b)(2).
Texas Family Code sections 161.001(b)(1)(E), (M), and (R) provide as follows:
(E) 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;
. . . .
(M) had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state;
. . . .
(R) been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription; . . . .TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (M), (R). --------
V.A.L. does not challenge the trial court's findings concerning the statutory grounds for involuntary termination of her parental rights. See id. § 161.001(b)(1); see also In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). Instead, she argues the trial court erred because the evidence was neither legally nor factually sufficient for it to find, by clear and convincing evidence, that terminating her parental rights was in her child's best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); accord In re J.F.C., 96 S.W.3d at 261.
SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
"Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them except for the child's right to inherit from the parent." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.—Corpus Christi 2006, no pet.)).
An order terminating parental rights must be supported by clear and convincing evidence that (1) the parent has committed one of the grounds for involuntary termination as listed in section 161.001(b)(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001; In re J.F.C., 96 S.W.3d at 261. "There is a strong presumption that the best interest of a child is served by keeping the child with its natural parent, and the burden is on [the Department] to rebut that presumption." In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). "The same evidence of acts or omissions used to establish grounds for termination under section 161.001(1) may be probative in determining the best interest of the child." Id.
When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "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., 163 S.W.3d 79, 85 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d at 266). If the court "determines [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true," the evidence is legally sufficient. See id. (quoting In re J.F.C., 96 S.W.3d at 266).
Under a clear and convincing standard, evidence is factually sufficient if "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San Antonio 2004, no pet.). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." In re J.F.C., 96 S.W.3d at 266; accord In re C.H., 89 S.W.3d at 25.
B. Evidence Regarding the Best Interest of the Child
A trial court may terminate a parent's rights to a child if it finds, inter alia, such "termination is in the best interest of the child." TEX. FAM. CODE ANN. § 161.001(b)(2); accord In re J.F.C., 96 S.W.3d at 261.
Applying the applicable standards of review for sufficiency of the evidence, we examine all the evidence, see In re J.F.C., 96 S.W.3d at 266; see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (crediting or disregarding evidence), and recite below the evidence that especially pertains to the Holley factors, see Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The trial court heard arguments from the Department's attorney, the child's ad litem, and counsel for V.A.L. However, because V.A.L. did not appear for the hearing, the only live testimony presented during the hearing was that of the Department's caseworker. The caseworker and V.A.L.'s attorney both reported V.A.L. knew about the hearing and both expected V.A.L. to be present.
The caseworker testified the Department became involved in L.C.B.'s care when the child and V.A.L. tested positive for marijuana and amphetamines at the time of L.C.B.'s birth. V.A.L. acknowledged marijuana use, but asserted the positive amphetamine test was a result of her taking Benadryl and "drinking NyQuil at the hospital." The caseworker further testified the Department previously terminated V.A.L.'s parental rights in two other cases. Further, because both terminations included findings on grounds (D) and (E), and the second termination involved the child being exposed to drugs, pursuant to section 262.2015, the Department did not provide V.A.L. with a service plan or pay for services. See TEX. FAM. CODE ANN. § 262.2015; In re A.L.H, 468 S.W.3d at 744.
The Department's orders, however, did provide for visitation between V.A.L. and L.C.B. if V.A.L. provided a clean drug test. The caseworker testified that V.A.L. did visit L.C.B., but acknowledged the tests were always based on when V.A.L. was ready to submit to testing. The caseworker also testified that V.A.L. began domestic violence classes, but was unsuccessfully discharged. To the caseworker's knowledge, however, V.A.L. did not attend any drug treatment counseling or programs.
When asked about L.C.B., the caseworker testified the child experienced withdrawal symptoms at birth, but that L.C.B. was doing very well in the non-relative foster home placement. According to the caseworker, the Department exhausted all efforts to place the child with relatives and the foster parents are hoping to adopt L.C.B.
The caseworker further testified that, in her opinion, termination of V.A.L.'s rights was in L.C.B.'s best interest. The caseworker acknowledged that V.A.L. has been in greater contact with L.C.B., than with her other children. She also conceded that V.A.L. was living in a stable home and had maintained employment throughout the case. Although V.A.L. had made some progress, the caseworker provided a plethora of reasons supporting termination:
(1) V.A.L.'s continuous and ongoing illegal drug use;
(2) the Department's removal of four other children, including termination of parental rights for three of the children;
(3) V.A.L.'s failure to show she was able to make changes that would allow for a safe environment for her children, including L.C.B.;
(4) V.A.L.'s failure to demonstrate sobriety or properly address her history with domestic violence; andC. Holley Factors
(5) her inability to appear for the termination hearing.
The trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witness. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (requiring appellate deference to the fact-finder's findings); City of Keller, 168 S.W.3d at 819. The factors used to ascertain the best interest of the children were set forth in Holley, 544 S.W.2d at 371-72; accord In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors). The Holley court warned that "[t]his listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent." Holley, 544 S.W.2d at 372.
We note that because V.A.L. did not appear at the hearing, the trial court was limited to the caseworker's testimony regarding V.A.L.'s abilities. L.C.B. was only ten months old at the time of the termination hearing. Although L.C.B. was too young to testify. The evidence shows L.C.B. is doing well in the foster parents' residence. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (finding that two-year-old child was too young to testify about his desire regarding termination).
Throughout this case, as well as the Department's previous cases, V.A.L. was unable to successfully address her illegal drug use, her history of domestic violence, and her inability to provide a nurturing and safe environment for her children. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (concluding trial court permitted to consider parent's past conduct in best interest determination). V.A.L. has shown that when it comes to caring for her children or herself, she has not exercised good judgment. V.A.L. exhibited an inability to attend the necessary counseling or to seek help for her substance abuse; she also showed a propensity to participate and remain in abusive relationships.
Based on the evidence presented, the trial court could have reasonably concluded that V.A.L. lacked the decision-making skills and parental abilities to provide for and parent L.C.B. in a healthy and safe manner.
D. Analysis
The record clearly supports V.A.L.'s inability to effect positive changes within a reasonable time. The trial court could have also reasonably believed the testimony that V.A.L.
(1) "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;"See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (M), (R).
(2) "had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state;" and
(3) was "the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription."
Reviewing the evidence under the two sufficiency standards, and giving due consideration to evidence that the trial court could have reasonably found to be clear and convincing, we conclude the trial court could have formed a firm belief or conviction that terminating V.A.L.'s parental rights to L.C.B. was in the child's best interest. See In re J.F.C., 96 S.W.3d at 266; see also In re H.R.M., 209 S.W.3d at 108. Therefore, the evidence is legally and factually sufficient to support the trial court's order. See In re J.F.C., 96 S.W.3d at 266; see also In re H.R.M., 209 S.W.3d at 108.
CONCLUSION
The trial court found V.A.L. committed the statutory grounds supporting terminating her parental rights and that terminating V.A.L.'s parental rights was in L.C.B.'s best interest. V.A.L. only appealed the best interest of the child finding.
Having reviewed the evidence, we conclude it was legally and factually sufficient to support the trial court's finding, by clear and convincing evidence, that termination of V.A.L.'s parental rights to L.C.B. was in the child's best interest.
Accordingly, we overrule V.A.L.'s sole issue on appeal and affirm the trial court's order.
Patricia O. Alvarez, Justice