Opinion
No. 07-17-00092-CV
07-28-2017
IN THE INTEREST OF L.E., L.E., AND S.E., CHILDREN
On Appeal from the 286th District Court Hockley County, Texas
Trial Court No. 15-08-24355 , Honorable Pat Phelan, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Based on a jury's verdict, the trial court signed an order terminating the parental rights of the father to his children, L.E.-1, L.E.-2, and S.E., and appointing the Texas Department of Family and Protective Services permanent managing conservator of the children. At the time of the final hearing in February 2017, L.E.-1 was age twelve, L.E.-2, age five, and S.E., three.
The jury received a single broad form termination question with instructions on predicate grounds (D), (E), and (O) of Family Code section 161.001(b)(1) and best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),(E),(O), (2) (West Supp. 2016). In the order of termination, the trial court stated findings that the children's father had violated subsections (D), (E), and (O) and that termination was in the best interest of each of the children.
To protect the children's privacy, we will refer to the parents as "the mother" and "the father" and the children by initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b).
The mother executed an affidavit voluntarily relinquishing her parental rights to the children. Based on that affidavit and a best interest finding the trial court terminated her parental rights. TEX. FAM. CODE ANN. § 161.001(b)(1)(K),(2). She did not appeal.
On appeal, the father does not challenge the court's findings that he engaged in conduct that endangered his children, placed them in conditions that endangered them, and failed to comply with a court order establishing the actions necessary for him to obtain their return to his care. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O). His issues challenge the legal and factual sufficiency of the evidence supporting the finding that termination of his parental rights is in the best interest of the children. After review of the record, we conclude the evidence sufficiently supports the best-interest finding, and will affirm the trial court's order of termination.
Background
The mother did not appear for the final hearing but testified at the adversary hearing. Background facts provided here are drawn chiefly from final hearing testimony but include testimony from the adversary hearing. At the final hearing, the reporter's record of the adversary hearing was admitted into evidence without objection or limitation and excerpts of testimony were read to the jury.
The father and the mother married in 2004. The mother is the father's fourth wife; he is twenty-three years her senior. Evidence shows their relationship has long been combative. In 2004 in Illinois, the father was convicted for felony assault of the mother and was imprisoned for six months. He was also charged with illegal possession of a firearm. At the time of the assault, the mother was pregnant with L.E.-1.
L.F. is the father's sister. She is widowed and lives in Hockley County. In 2013, the father contacted L.F. requesting financial help. She sent him $1800 to restore the family's utilities. According to L.F's testimony, a couple of weeks later the father contacted her again, reporting he could not find work and the family had nothing. With L.F.'s help, the father and his family moved to Hockley County, first living with L.F. and her then-ill husband. The father later moved his family to a nearby house in the same community, even though, L.F. said, that house "was not in living condition[]."
In 2014, local police arrested the father for the offense of terroristic threat, but he was not convicted. In March 2015, the mother took the children to Kentucky where her mother lived. There, the mother obtained a protective order against the father. According to L.F., the mother had bruises on her arm and stomach and the father had threatened her with a gun. They returned to Texas and the father in May 2015.
The Department became involved with the father and the mother in July 2015 when it received a report of domestic violence. L.E.-1 was observed with bruises and a burn on his chest. He explained the bruises resulted from a fall and the burn was caused by cooking. He told the Department he often watched after his younger siblings while his parents argued.
On August 10, 2015, L.F. testified, the father and the mother voluntarily placed the children with her because the family's water and gas had been disconnected. The father testified he was working regularly at the time but could not pay the family's bills.
The Department filed a petition for protection, conservatorship, and termination in late August 2015. At the September 1, 2015 adversary hearing, the court appointed the Department temporary managing conservator of the children. The children remained with L.F., the parents having limited supervised visitation and telephone contact. The court signed an order specifying actions necessary for return of the children. It required the father, among other things, to maintain stable housing and adequate employment, abstain from illegal drugs, submit to drug screening as directed, abstain from activities or criminal conduct which could result in incarceration, and complete services including parenting classes, individual therapy, a psychological evaluation, anger management counseling, and a batterer's intervention program.
A Hockley County deputy sheriff testified to a series of calls to the father and mother's home, primarily in response to domestic violence reports. He referred to five such instances from 2014 to 2016. The mother testified at the adversary hearing that the father once caused bruises on her arms by grabbing her while trying to take a knife from her. The deputy sheriff said the bruises appeared the result of someone grabbing the mother's arms. The father testified the mother hit him, causing bruises on her arms. The mother also testified the father grabbed her "at least over ten" times during a thirteen-year period.
The deputy sheriff said the children were present during the calls to their home and appeared upset. He described a conversation with L.E.-1 after a late July 2015 call, in which the child told him his parents had "a screaming match" while the mother held S.E. He said L.E.-1 told him "the two had a tug-of-war match over [S.E.]," both struggling to take possession of the baby. The event left L.E.-1 "scared."
In November 2015, the father was in the county jail on charges of interfering with a "nonemergency" 9-1-1 call, resisting arrest and possession of a controlled substance in a corrections facility. He remained in jail until January 2016 when he was released and the charges dismissed. During the period of confinement, the father had no contact with the children and did not participate in any services.
On the Department's motion, during February 2016, the trial court issued a protective order in favor of L.S.-1, L.S.-2, and S.E. The order contained the court's finding that the father "has committed family violence."
There was evidence that the father's dealings with the Department were contentious, especially so early in the case. At that time he resented the Department's involvement, and viewed it as his "adversary." The Department caseworker assigned to the family testified that when she and her supervisor called the father to discuss services he responded with profanity and threatened a lawsuit. In final hearing testimony, the caseworker testified Department caseworkers were not permitted to visit the father at his home "due to his violent tendencies." She also testified the Department did not have contact with the father from September 2015 until February 2016.
The father eventually began therapy sessions in September 2016 with a counselor. He completed parenting and anger management classes but because of work-related absences did not successfully complete the batterer's intervention program. There was evidence his supervised visits with his children went well.
During the summer of 2016, L.F. developed stress-related health issues, requiring the Department to place the children in foster care elsewhere. She testified at the final hearing her health issues were resolved and she saw no reason why the children could not be returned to her care. L.F. said that while in foster care the children asked when they could "come home," meaning her home.
There was evidence also of the father's drug use. He tested positive for amphetamines and methamphetamines in a February 2016 hair follicle drug test, although the same day a urinalysis was negative. When confronted with a positive test, the father on one occasion denied the result and threatened a lawsuit. His August 2016 cuticle drug test was negative, but a December 2016 hair follicle test was positive for cocaine. A urinalysis of the same day was also positive. The father did not test again before trial. The caseworker testified that on "several" occasions the Department requested the father take a drug test but he did not. The father agreed at trial that since having children he used cocaine not more than five times. He denied needing help with drug dependency and testified, "It's not a habit." At the final hearing, he testified of being free of drugs and willing to take a drug test. The father told the jury depression drove him to drug use. He agreed he was self-medicating for depression when he used cocaine in December 2016. The father also acknowledged using marijuana during the lifetimes of the children. The court also heard the testimony of a counselor who expressed the opinion that a person with a history like the father's who has a "pattern of behavior, without some pretty major efforts, probably that pattern . . . is going to be your standard pattern, and it's going to reoccur."
The father's counselor from September through November 2016 testified. He expressed concern with the father's denial that drug use was a problem, and the anger and impatience he observed.
Analysis
Through his two appellate issues, the father argues the evidence was legally and factually insufficient to support the finding that termination of his parental rights was in the best interest of the children.
In his motion for new trial the father argued the evidence was legally and factually insufficient to support the best-interest finding, thus preserving his appellate complaint. See In re S.R.-B., No. 02-15-00301-CV, 2016 Tex. App. LEXIS 629, at *4 (Tex. App.—Fort Worth Jan. 21, 2016, no pet.) (mem. op.) (stating methods for preserving legal sufficiency challenge following jury trial and that following jury trial factual sufficiency challenge is preserved by motion for new trial). However, when a legal sufficiency challenge is preserved only by a motion for new trial the appellant is not entitled to rendition of judgment by the appellate court. In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *11-12 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.).
The Due Process Clause of the United States Constitution and section 161.001 of the Texas Family Code require application of the heightened standard of clear and convincing evidence in cases of involuntary termination of parental rights. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence is that measure or degree of proof which 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); In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).
Under the Family Code, a trial court may terminate parental rights if the petitioner proves by clear and convincing evidence that the parent committed a predicate act prohibited under section 161.001(b)(1) and termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001(b)(1),(2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Only one predicate finding under section 161.001(b)(1) is necessary to support an order of termination when there is also a finding that termination is in a child's best interests. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.).
Under the legal sufficiency analysis, we examine all of the evidence in the light most favorable to the challenged finding, assuming the "factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." In re J.F.C., 96 S.W.3d at 266. We disregard all contrary evidence the factfinder could have reasonably disbelieved or found incredible. Id. However, we take into account undisputed facts that do not support the finding, so as not to "skew the analysis of whether there is clear and convincing evidence." Id. If the record presents credibility issues, we defer to the factfinder's determinations provided they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
In a factual sufficiency review, a court of appeals gives due consideration to the evidence the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. We determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the petitioner's allegations. Id. In doing so we consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. 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. In re J.F.C., 96 S.W.3d at 266.
Best Interest Determination
In the present case, the jury charge contained the following best-interest instruction:
You will be required to determine whether termination of the parent-child relationship in this case would be in the best interest of the children. Some factors to consider in determining the best interest of the children are:See Comm. on Pattern Jury Charges, State Bar of Texas, TEXAS PATTERN JURY CHARGES: FAMILY AND PROBATE PJC 218.1A (2014) (providing instruction); cf. Holley, 544 S.W.2d at 371-72 (listing factors but qualifying list as "by no means exhaustive"). We will therefore consider these factors in determining whether sufficient evidence supported the best-interest determination. See Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 221 & n.30 (Tex. 2005) (explaining that when, as here, there is no objection to the jury charge the sufficiency of the evidence is measured by the jury charge given).
1. The desires of the children.
2. The emotional and physical needs of the children now and in the future.
3. Any emotional and physical danger to the children now and in the future.
4. The parenting ability of the individuals seeking custody.
5. The programs available to assist those individuals to promote the best interest of the children.
6. The plans for the children by those individuals or by the agency seeking custody.
7. The stability of the home or proposed placement.
8. The acts or omissions of the parent or parents that may indicate that the existing parent-child relationship is not a proper one.
9. Any excuse for the acts or omissions of the parent or parents.
Desires of the Children. Although it was undisputed the father loves his children and that they had a strong bond with him, the jury also heard testimony that the older two children desired to live with their aunt, L.F. S.E. had not indicated a preference because of his age. L.E.-1 indicated to a counselor a secure feeling about L.F.'s home. The father testified that the children and L.F. love each other. He believed it was in their best interest to be with L.F. but termination of his parental rights was not in their best interest. He "ultimately" wanted the children home with him.
The Emotional and Physical Needs of the Children. The caseworker told the jury the children have significant emotional needs and require "structure, stability, a place where they can feel safe and loved." A counselor testified the children require a home free of disruption and domestic violence, without substance abuse, with a primary caregiver who obtains the help they need. The counselor testified that L.F. was L.E.-1's "protector," providing a home where bills are always paid, a stable environment. The evidence pointed to the ability of L.F. to meet the emotional and physical needs of the children. The father testified to his close relationship with his children, but the jury also heard persuasive evidence of his lack of ability to meet their needs, emotional and physical.
The Emotional and Physical Danger to the Children. A substantial body of evidence was developed pointing to the father's involvement in domestic violence and illegal drugs. There was also evidence of financial distress causing the loss of utilities and housing. In his testimony, the father's counselor told the jury of the harmful consequences of domestic violence on children. He stated domestic violence is a form of child abuse and neglect because children are hurt psychologically. The counselor further testified children "see the two people who . . . they trust the most fighting with each other, and it's very emotionally traumatic to them, and they often feel fear and anxiety." From the evidence jurors heard, they reasonably could have concluded the father was unable or unwilling to recognize his role in the discord that characterized their home. And the strength of the evidence permitted the jury to believe the children would continue to experience such trauma if returned to the father's care. Cf. In re S.G., No. 02-11-00122-CV, 2011 Tex. App. LEXIS 9032, at *15-24 (Tex. App.—Fort Worth Nov. 10, 2011, no pet.) (mem. op.) (finding termination in children's best interest where evidence showed, among other things, father did not complete services and failed to resolve his "anger issues and domestic violence" or "alleviate the risk of abuse or neglect to the children").
On appeal the father argues the mother's relinquishment of her parental rights will remove the source of disruption from their family. We do not agree the jury was required to see the evidence in such light. The record demonstrates the father's history of angry and threatening behavior toward persons other than the mother, and nothing shows that conduct will cease, even in the absence of a relationship with the mother.
Parenting Ability. The evidence permitted the jury to reasonably believe the father and the mother exposed the children to an atmosphere of acrimony and anxiety-producing uncertainty. For the jury's consideration the evidence included a protective order, rendered during the pendency of the Department's case, containing the trial court's finding that the father had engaged in family violence. The father used illegal drugs, notably methamphetamine and cocaine, but refused to acknowledge such use as a problem in parenting. See In re F.A.R., No. 11-04-00014-CV, 2005 Tex. App. LEXIS 234, at *11-12 (Tex. App.—Eastland Jan. 13, 2005, no pet.) (mem. op.) (stating a mother's "[c]ontinued drug use—even after undergoing two drug treatment programs— demonstrates an inability to provide a stable environment for [her child] and an inability to provide for his emotional and physical needs"). While the children resided with the parents, the family struggled financially. The record indicates the father's supervised visitation with the children was acceptable, and a reciprocal close relationship between the father and children was not disputed. But the evidence did not show stabilization of the father's behavior warranting a belief that the father had overcome some major behavior problems and was capable of providing a home environment meeting the children's best interest needs. Moreover, while the father argues the termination of the mother's parental rights is a positive development toward his future relationship with his children, he has no history of caring for them without their mother's presence. The jury was not required to share the father's optimism regarding his eventual ability to raise the children alone.
At the time of the final hearing L.F. was in her late fifties and had many times come to the rescue of the father and the children. She resolved a health issue that interrupted the children's placement with her. She has two adult children but evidence was not developed of their upbringing. Her expressed desire was to care for L.E.-1, L.E.-2, and S.E. and evidence indicating she lacked the wherewithal to care for the children was not offered. L.F. resigned her professional employment to care for the children, and the record does not indicate this created a financial hardship. L.F. testified she would provide a home where the children know they are loved and are safe; "an environment that lets them grow up and flourish."
Programs Available for Assistance. To obtain return of the children the father was obligated to participate in and successfully complete several programs ordered by the court. He completed some but not all of those requirements. He also did not comply with all requested drug screenings. See In re J.T.G., 121 S.W.3d 117, 131 (Tex. App.—Fort Worth 2003, no pet.) (stating jury could have reasonably inferred that parent's failure to complete required drug test indicated he was using illegal drugs). Two drug tests produced positive results for methamphetamine and cocaine respectively. The services the father failed to complete were directly related to underlying reasons for the children's removal, that is, domestic violence and substance abuse, and his failure to complete those court-ordered requirements was evidence of danger to the children were they returned to the father. In re B.A., No. 04-13-00246-CV, 2013 Tex. App. LEXIS 10841, at *5 (Tex. App.—San Antonio Aug. 28, 2013, no pet.) (mem. op.).
Plans for the Children. The Department's immediate plan for the children was reestablishing the three boys' placement with L.F. in her home. According to the caseworker, at the time of the final hearing L.F. was in the process of becoming a licensed foster parent and was moving to a different home. The Department was waiting for L.F. to get established in the new home so the children were not moved from school to school over a brief period. The caseworker further testified that while the children lived with L.F., "They did awesome. She is—she is their saving grace. I mean, she has taken them in, and she has been the only consistent thing in their lives." The children were in counseling and the record provides no expected cessation of those services.
In final-hearing testimony, the father expressed a belief that, for a time, it was in the children's best interest to remain in the care of L.F. Termination was not, he believed, in their best interest. He "ultimately" wanted the children at home with him. According to the father, he was purchasing a home in Lubbock but it needed repairs to become move-in ready.
Remaining factors. The evidence we have related bears also on the remaining factors listed in the court's charge, those being the stability of the home, the father's acts and omissions, and any excuses for the acts or omissions. The evidence amply demonstrates the instability of the home the father provided his children, and demonstrates the effects of his acts and omissions on his children. See In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.) ("A parent's drug use, inability to provide a stable home, and failure to comply with his family service plan support a finding that termination is in the best interest of the child"). The court's unchallenged findings of the father's endangering conduct and the endangering conditions to which the children were subjected also are especially relevant here. See In re C.H., 89 S.W.3d at 28 (same evidence may be probative both of predicate grounds and best interest); In re K.M., No. 07-16-00120-CV, 2016 Tex. App. LEXIS 6886, at *6 (Tex. App.—Amarillo June 29, 2016, no pet.) (mem. op.) (citing In re C.H.); see also In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (unchallenged predicate findings binding on appellate court).
Our courts have recognized that a trier of fact may measure a parent's future conduct by his past conduct when determining whether it is in children's best interest to terminate parental rights. See, e.g., In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.). And, as we have pointed out before, the best interest analysis evaluates the best interest of the child, not that of the parent. In re A.C.B., 198 S.W.3d 294, 298 (Tex. App.—Amarillo 2006, no pet.); see In re M.G.D., 108 S.W.3d 508, 515 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (Legislature has made clear that courts cannot leave children in foster care indefinitely while existing parents try to improve themselves and their conditions).
The father compares the evidence adduced in this case with that of In re W.C., 98 S.W.3d 753 (Tex. App.—Fort Worth 2003, no pet.), which the court found factually insufficient to support a jury's finding termination of a mother's parental rights was in her children's best interest. Id. at 755. But the court noted in that case uncontradicted evidence that the appellant mother had "done everything the Department required of her." Id. at 766. Evidence showed, in fact, that the Department told the mother, months before trial, that her children were being returned to her. The court concluded that the record before it reflected there was "nothing more" the mother could have done to have her children returned. Id. The record before us, by contrast, contains evidence of the father's resistance to the requirements of his court-ordered service plan and his stubborn refusal to acknowledge his need to make changes in his life to adequately serve as father to his children.
In In re A.B., 412 S.W.3d 588, 607 (Tex. App.—Fort Worth 2013), aff'd, 437 S.W.3d 498 (Tex. 2014) the Fort Worth court parenthetically summarized its holding in In re W.C. explaining the evidence in In re W.C. "was factually insufficient to show that termination was in the children's best interest because the mother had not only completed her service plan but had significantly improved her insight and coping skills, family relationships, and support system." We note also that evidence of drug use was not present in In re W.C., 98 S.W.3d at 765.
Conclusion
As required, we have reviewed all the evidence presented to the jury. See In re A.B., 437 S.W.3d 498, 505 (Tex. 2014) (court of appeals must "conduct exacting review of the evidence"). For the reasons discussed, on this record we find the evidence supported the jury's firm belief or conviction that termination of the father's parental rights was in the best interest of L.E-1, L.E.-2, and S.E. The evidence to the contrary was not so strong as to preclude the jury from reaching such a firm belief or conviction. We accordingly overrule the father's two issues on appeal and affirm the trial court's order of termination.
James T. Campbell
Justice