Opinion
No. 11-15-00154-CV
01-04-2016
IN THE INTEREST OF L.M.M., A CHILD
On Appeal from the 118th District Court Howard County, Texas
Trial Court Cause No. 49,802
MEMORANDUM OPINION
This is an appeal from an order in which the trial court, based upon the jury's verdict, terminated the parental rights of the mother and the father of L.M.M. Both parents timely filed a notice of appeal. Each parent presents four issues on appeal in which they challenge the legal and factual sufficiency of the evidence to support termination. We affirm.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2015). To determine if the evidence is legally sufficient in a parental termination case, we review all of the evidence in the light most favorable to the finding and determine whether a rational trier of fact could have formed a firm belief or conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the evidence is factually sufficient, we give due deference to the finding and determine whether, on the entire record, a factfinder could reasonably form a firm belief or conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). To terminate parental rights, it must be shown by clear and convincing evidence that the parent has committed one of the acts listed in Section 161.001(b)(1)(A)-(T) and that termination is in the best interest of the child. FAM. § 161.001(b).
After being instructed in accordance with Section 161.001(b), the jury answered two questions posed in the trial court's charge to the jury; the jury unanimously determined that the parental rights of both parents should be terminated. The trial court found that the mother and the father had committed three of the acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), and (O). Specifically, the trial court found that each parent had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the physical or emotional well-being of the child, that each parent had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child, and that each parent had 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 had been in the managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent for abuse or neglect. The trial court also found, pursuant to Section 161.001(b)(2), that termination of the parents' parental rights would be in the best interest of the child.
With respect to the best interest of a child, no unique set of factors need be proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied). But courts may use the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include, but are not limited to, (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id. Additionally, evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. C.J.O., 325 S.W.3d at 266.
Analysis
The record shows that the Department first became involved with the parents in this case before L.M.M. was born. The parents' older children had been removed from the parents' care. The cases involving some of the older children ultimately resulted in the termination of the parents' rights as to those children. One of those children was born addicted to drugs and in bad health.
L.M.M. was removed from her parents' care shortly after birth and has been in foster care since she left the hospital. Hospital personnel contacted the Department because L.M.M. was very jittery and anxious and was born with drugs in her system. Hospital personnel caught the mother attempting to fill a drug test cup with water. The Department's investigator went to the hospital and observed that the mother was very thin and frail and had sores on her body. The mother told the investigator that, on the day before L.M.M. was born, the mother had taken methadone, as prescribed by a doctor who knew she was pregnant, and had also taken Adderall, for which she had no prescription. At the hospital, the father failed a drug test given by the Department's investigator. He became irate, and security had to be summoned. The Department removed L.M.M. because she was born with drugs in her system and because she would be in danger if she were permitted to leave with the parents.
Both parents had extensive criminal histories, and both had a history of abusing drugs. Heroin had been the mother's drug of choice. The parents testified that they no longer used drugs except for the methadone that they received at the clinic to help them overcome their drug addictions. The mother testified that, other than the prescribed methadone, she had not used any drugs since she found out she was pregnant with L.M.M. She claimed that the drug screen taken by the investigator at the hospital "was a lie." Both parents, however, refused to submit to a hair follicle test as ordered by the trial court on more than one occasion. In addition, other evidence was presented that the mother admitted that, while pregnant with L.M.M., the mother had taken Adderall for which she had no prescription and had smoked marihuana. Additionally, on one occasion when the Department caseworker took the mother home after visitation, the mother told the caseworker to call the police because the father was high on Xanax and marihuana and had threatened to kill the mother, the caseworker, and another Department employee who had accompanied the caseworker to the parents' residence.
As a result of L.M.M.'s removal, the trial court ordered the parents to complete various family services and notified them that full compliance was necessary for them to obtain the return of the child. The evidence at trial showed that the parents admittedly did not complete several of the required services and, thus, failed to comply with the trial court's order. On appeal, the parents argue that, even if they did fail to comply with the trial court's order, a finding under subsection (O) cannot be upheld because the Department failed to prove by clear and convincing evidence that the child was removed due to abuse or neglect.
To comply with subsection (O), the Department need not prove actual abuse or neglect of the child. In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). The court in E.C.R. held that "abuse or neglect" as used in subsection (O) "necessarily includes the risks or threats of the environment in which the child is placed" and, thus, "includes the harm suffered or the danger faced by other children under the parent's care." Id. Based upon the supreme court's interpretation of the words "abuse or neglect" as used in subsection (O), we hold that L.M.M. was removed for "abuse or neglect." See id. Thus, both parents were required to comply with the provisions of the trial court's order and the family service plan, which specifically established the actions necessary for the parents to obtain the return of the child. See id.; In re D.R.A., 374 S.W.3d 528, 532 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The parent who fails to comply with a court order as required by subsection (O) need not be the same parent whose abuse or neglect triggered the child's removal. In re D.R.J., 395 S.W.3d 316, 320 (Tex. App.—Fort Worth 2013, no pet.).
The record contains clear and convincing evidence that both parents failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain the return of L.M.M., who had been in the conservatorship of the Department for more than nine months and had been removed due to abuse or neglect. Clear and convincing evidence also reflected that L.M.M. had been removed due to abuse or neglect, or the risk thereof, and that she had been in the care of the Department for over nine months. Consequently, we hold that the evidence is legally and factually sufficient to support the trial court's finding as to each parent under Section 161.001(b)(1)(O).
We overrule the legal and factual sufficiency complaints presented by the mother and the father in the third issue of their briefs. We also overrule the remaining "constitutional" contention presented by the mother in her third issue. In addition to her legal and factual sufficiency argument, the mother includes a general assertion that her constitutional rights were violated. The mother lodged no constitutional complaint at trial and has not adequately briefed any such contention on appeal. See TEX. R. APP. P. 33.1, 38.1.
Because we find the evidence sufficient to support termination of the parents' parental rights under subsection (O), we need not reach their first and second issues in which they challenge the sufficiency of the evidence to support termination under subsections (D) and (E). See TEX. R. APP. P. 47.1. A finding that a parent committed any one of the acts under Section 161.001(b)(1)(A)-(T) is sufficient to support termination as long as termination is in the child's best interest.
In the mother's fourth issue and in the father's fourth issue, the parents challenge the trial court's finding that termination of that parent's parental rights would be in the best interest of the child. The record reflects that L.M.M. has lived in a stable home with the same foster parents since she was nine weeks old. L.M.M.'s older half sister lives in that home and has been adopted by L.M.M.'s foster parents. L.M.M. has a strong bond with her half sister and her foster parents. The mother agreed that L.M.M.'s foster parents were an appropriate placement for L.M.M., but the mother believed that L.M.M. needed to be with her biological parents. The Department's goal for L.M.M. was for her to remain in the home with her foster parents and to be adopted by them. The foster parents have expressed a desire to adopt L.M.M. The foster mother and the Department's caseworker testified that termination of both parents' rights would be in L.M.M.'s best interest.
The record also shows that the parents regularly attended their scheduled visitations with L.M.M. The parents testified that they had developed a bond with L.M.M. during these visits. With respect to the appropriateness of the visitations, the Department's caseworker testified only that she had to interrupt one of the visits because the father was cursing in front of the child and that the parents had to be told not to give the child a Coke.
L.M.M. and both parents tested positive for various drugs at the hospital when L.M.M. was born. The testimony at trial indicated that the parents, whose histories included serious drug-related issues, defied orders of the trial court for hair follicle testing. The parents indicated that the drug tests given by the Department returned false positives and that the people administering the drug tests for the Department lied. The trier of fact could have deemed the parents' refusals to submit to the trial court's orders for hair follicle testing as an indication that the parents continued to abuse drugs. We note additionally that the trier of fact is the sole judge of the credibility of the witnesses at trial and that we are not at liberty to disturb the determinations of the trier of fact as long as those determinations are not unreasonable. J.P.B., 180 S.W.3d at 573.
Based upon the Holley factors and the evidence in the record, we cannot hold that the best interest findings are not supported by clear and convincing evidence. See Holley, 544 S.W.2d at 371-72. The trier of fact could reasonably have formed a firm belief or conviction that it would be in the child's best interest for the mother's and the father's parental rights to be terminated. We hold that the evidence is both legally and factually sufficient to support the best interest findings. The mother's fourth issue and the father's fourth issue are overruled.
This Court's Ruling
We affirm the trial court's order of termination.
JOHN M. BAILEY
JUSTICE January 4, 2016 Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.