Opinion
04-21-00277-CV
01-26-2022
IN THE INTEREST OF M.C.L. V, a Child
From the 438th Judicial District Court, Bexar County, Texas Trial Court No. 2020-PA-01657 Honorable Kimberly Burley, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Irene Rios, Justice Beth Watkins, Justice
MEMORANDUM OPINION
Irene Rios, Justice
Appellants Mother and Father appeal the trial court's order terminating their parental rights to their child, Matt. Father and Mother challenge the sufficiency of the evidence supporting the statutory predicate grounds and that termination was in Matt's best interest. Mother also argues- because the termination of her 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 "Matt." 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 children.
Background
The Department of Family and Protective Services ("the Department") removed Matt's older brother, M.C.L., from Mother and Father's care following an incident where Father punched Mother in the face. Immediately after the domestic violence, Father placed M.C.L. on his lap and drove away in his vehicle. Mother was transported to the hospital to be treated for her injuries, and Father was stopped by law enforcement and placed under arrest for assault and child endangerment.
We refer to Matt's older brother with the pseudonym, "M.C.L."
The case to terminate Mother's and Father's parental rights to M.C.L. was jointly tried with the case to terminate Mother's and Father's parental rights to Matt. The trial court terminated Mother's and Father's parental rights to both children; however, this appeal only pertains to Matt. In a companion case, Mother and Father have appealed the termination of their parental rights to M.C.L. See In re M.C.L. IV a/k/a M.E., No. 04-21-00276-CV .
Matt was born while M.C.L. was under the Department's care. The Department sent an investigator to check on Matt three days after he was born because Mother was not fully engaged in her services in M.C.L.'s case, and she continued to have a relationship with Father. Following the investigation, the Department became concerned with Mother's "ability to care for the child" and removed Matt from Mother's care.
On August 14, 2020, the Department filed a petition seeking temporary managing conservatorship of Matt and termination of Mother's and Father's parental rights. The trial court granted the Department temporary managing conservatorship, and the Department placed Matt in foster care with his older brother, M.C.L.
On June 7, 2021 and June 10, 2021, the trial court held a bench trial. The trial court heard testimony from Priscilla Sandoval, the Department's caseworker, Mother, and Father.
On August 3, 2021, the trial court rendered an order terminating Mother's and Father's parental rights to Matt. Specifically, the trial court terminated Mother's parental rights based on statutory ground (O), and Father's parental rights based on statutory grounds (N), (O), and (P) in section 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O), (P). The trial court also found that it was in Matt'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
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).
Partial compliance with a court-ordered service plan does not constitute compliance under statutory ground (O). J.F.C., 96 S.W.3d at 278; In re J.M.T., 519 S.W.3d 258, 267 (Tex. App.- Houston [1st Dist.] 2017, pet denied) (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.).
Only one predicate ground finding under section 161.001(b)(1) is necessary to support a termination judgment when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore, our analysis is usually complete if we conclude that the evidence is sufficient to support any single predicate ground. A. Father
The trial court terminated Father's parental rights under statutory grounds (N), (O), and (P) in section 161.001(b)(1) of the Texas Family Code. Father challenges the sufficiency of the evidence supporting each of those statutory grounds.
Sandoval testified Father's service plan required him to complete counseling, a drug assessment and any recommended treatment, parenting classes, domestic violence classes, a psychological evaluation, participate in scheduled visitation with Matt, and maintain stable housing and employment. 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. Sandoval stated she went over the service plan with Father and explained that failure to complete the plan could result in termination of his parental rights.
Sandoval testified Father had not engaged or participated in counseling, drug treatment, parenting classes, or the psychological evaluation. Father admitted he would try to schedule his services and would "get frustrated" and "give up." Sandoval further testified Father did not consistently visit Matt until two months prior to trial.
Father did not complete his domestic violence classes and testified he did not need to take domestic violence classes because he was "not a violent person" and "he didn't punch [Mother]." Father submitted into evidence two certifications for online domestic violence and anger management courses he took-between the first and second day of trial-without consulting the Department. However, these four-hour courses did not satisfy the four-to-eight-week domestic violence classes Father was required to take under his service plan.
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. Because the evidence is legally and factually sufficient to support the trial court's finding on statutory ground (O), we need not consider whether the evidence would support termination under statutory grounds (N) and (P). See A.V., 113 S.W.3d at 362.
B. Mother
The trial court terminated Mother's parental rights under statutory ground (O) in section 161.001(b)(1) of the Texas Family Code. Mother challenges the sufficiency of the evidence supporting this statutory ground.
Sandoval testified Mother's service plan required her to complete counseling, a drug assessment and any recommended drug treatment, parenting classes, domestic violence classes, a psychological evaluation, attend visitation with her children, and maintain stable housing and employment. 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 Mother's parental rights. Sandoval stated she went over the service plan with Mother and explained that failure to complete the plan could result in termination of her parental rights.
"Texas courts generally take a strict approach to subsection (O)'s application." J.M.T., 519 S.W.3d at 267. "A parent's failure to complete one requirement of her family service plan supports termination under subsection (O)." Id. (alterations omitted) Subsection 161.001(d) precludes termination under subsection (O) if the parent proves by a preponderance of the evidence that: (1) she was unable to comply with specific provisions of the court order incorporating the service plan; and (2) she made a good faith effort to comply with the order and her failure to comply is not attributable to any fault of her own. Tex. Fam. Code Ann. § 161.001(d); In re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019).
While Mother engaged and completed most of her services, Sandoval testified Mother stopped attending her counseling sessions shortly after Matt was born. Mother admitted she only attended one counseling session after Matt was born. Although Mother testified she stopped attending counseling sessions because the counselor never received the referral paperwork, Sandoval testified the counselor would not accept Mother back as a client after she had been unsuccessfully discharged for failing to engage in her counseling sessions. See Coburn, 433 S.W.3d at 823-24 (holding a reviewing court defers to the trial court's judgment regarding credibility determinations). Sandoval testified that she referred Mother to a new counselor, but Mother never attended sessions with the new counselor.
Sandoval testified Mother also failed to maintain stable employment as required by her service plan. Mother testified she quit her job several months before trial because she "just had to take a break."
Here, the evidence shows that Mother did not complete her counseling or maintain stable employment at the time of trial as required by her court-ordered service plan. In addition, the record supports the trial court's finding that Mother did not prove by a preponderance of the evidence she was unable to comply with the plan and that she made a good faith effort to comply and failure to comply with the court-ordered service plan is not attributable to any fault of her own. See Tex. Fam. Code Ann. § 161.001(d). 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 Interest
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.
The Child's Desires, Age, Vulnerabilities, and Physical and Emotional Needs
"When children are too young to express their desires, the fact finder may consider that the children have bonded with the foster family, are well-cared for by them, and have spent minimal time with a parent." In re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.-San Antonio 2017, pet. denied). Matt is less than two years old and was taken into the care of the Department only three days after he was born. In the foster family's care, Sandoval testified Matt and M.C.L. are "doing really well, they're thriving, [and] they're hitting every milestone."
Sandoval further testified Matt's foster family has been attentive to meet his needs. For example, Matt is participating in early childhood intervention services to address an issue with his foot. Sandoval testified the foster family has been taking Matt to physical therapy for his foot "and he's doing much better now." See In re S.D., 980 S.W.2d 758, 764 (Tex. App.-San Antonio 1998, pet. denied) (holding it was in the children's best interests to place them "in a stable environment where they can receive proper care for their special needs").
Father's visitations have been sporadic, and he has not bonded with Matt. Although Mother's visitation was consistent and she has formed a bond with Matt, Sandoval's testimony indicated that it was not a strong bond because Matt was so young and did not see Mother often.
Accordingly, the record reflects that Matt is well-cared for by his foster family, has not formed a bond with Father, and has not formed a strong bond with Mother. See S.J.R.-Z., 537 S.W.3d at 693. These factors weigh in favor of termination.
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.).
The trial court heard testimony that Mother was taken to the hospital after Father punched her twice in the face. During this incident, Father grabbed M.C.L. and put him in Father's lap as Father drove away in his vehicle. Father has not engaged in any of his services to address the domestic violence that led to the removal of M.C.L. Father claims he does not need to address his domestic violence issues because he is "not a violent person" and he "didn't punch [Mother]." Because Father has not addressed or even acknowledged his domestic violence issues or his history of abusive conduct, the trial court could have formed a firm belief or conviction that returning Matt to Father would present an emotional or physical danger to Matt.
"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 at 693.
Here, Mother has chosen to accept Father's endangering conduct by continuing to be in a relationship with him and minimizing the domestic violence incident. Although the domestic violence resulted in her seeking medical assistance at a hospital, Mother characterized the domestic violence as an "accident" resulting from a "little argument." Sandoval explained that Mother's relationship with Father-while he wasn't engaging in services-was detrimental to her case. Mother told Sandoval "she wanted a relationship with him, she wanted to make it work with him, no matter what, and that she was going to support him[.]" Mother testified she ended her relationship with Father after the domestic violence incident, but immediately contradicted her testimony and admitted that she continued a relationship with Father. Mother stated, she was "going to have a relationship [with Father] regardless[, ]" because "[h]e's the father of my kids." Further, Mother conceded that one reason the Department removed Matt from her care was because Father was in Mother's apartment when the Department sent an investigator to check on Matt.
Based on this evidence the trial court could have formed a firm belief or conviction that Mother would continue a relationship with Father and endanger Matt by accepting Father's endangering conduct. Accordingly, these factors weigh in favor of termination.
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, Father admitted to smoking marijuana as recently as one month before trial. As mentioned above, Mother unequivocally stated she was going to continue to have a relationship with Father and they would raise M.C.L. and Matt together. Accordingly, this factor weighs in favor of termination. Willingness to Seek Help and Counseling, Parental Abilities, Programs, and Acts or Omissions
As mentioned in the statutory grounds section above, neither Father, nor Mother completed their service plan. The trial court's order required Mother and Father to participate in services to address issues that led to removal. Sandoval testified she made resources available to Mother and Father and sent out the necessary referrals. However, Father was not willing to engage in any of those services and Mother was unwilling to complete her counseling. Moreover, Sandoval testified Mother did not seem to grasp the goals of the domestic violence classes because Mother's relationship with Father continued to have a negative impact on her. Accordingly, 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." In re S.J.R.-Z., 537 S.W.3d at 693.
Sandoval indicated the Department's permanency plan is for the children to be adopted by their current foster family and the foster family is willing to adopt M.C.L. and Matt. Accordingly, 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 Mother's and Father's parental rights is in Matt'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 her third issue, Mother argues she should be named a possessory conservator of the children if the trial court's best interest findings are based on insufficient evidence. However, because we have determined the trial court did not err in terminating Mother's parental rights, Mother no longer has any legal rights with respect to the children and cannot challenge the portion of the termination order that relates to appointment of conservators for the children. 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.