Opinion
No. 05-15-01041-CV No. 05-15-01042-CV No. 05-15-01043-CV No. 05-15-01044-CV
02-19-2016
IN THE INTEREST OF M.D.W., Z.J.W., J.Q.W., J.W., AND M.I.B.
On Appeal from the 302nd Judicial District Court Dallas County, Texas
Trial Court Cause Nos. DF-10-13224-U; DF-13-18933-U; DF-14-10757-U; DF-13-18931-U
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Myers
Opinion by Justice Bridges
Mother and Father appeal the trial court's decrees terminating their parental rights. These appeals involve five children: M.I.B., a son born in 2008 to Mother and an unknown father and four children born to Mother and Father: M.D.W. and Z.J.W., born in 2010; J.Q.W., born in 2012; and J.W., born in 2014. In four issues, Mother argues the evidence is legally and factually insufficient to establish (1) Mother knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; (2) Mother engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children; (3) termination of Mother's parental rights is in the best interest of the children; and (4) the Texas Department of Family and Protective Services (the department) should be appointed managing conservator of the children. In three issues, Father argues the evidence is legally and factually insufficient to establish his parental rights should be terminated, and the evidence was factually insufficient to show termination of his parental rights was in the best interest of the children. We affirm the trial court's decrees terminating Mother's and Father's parental rights.
Father testified that, in 1999, he was convicted in state court of possession of crack cocaine and spent thirty days in jail. In 2004, Father was involved in "another incident of manufacture and delivery of a controlled substance," powder cocaine, and he "had a firearm." The "sole charge was a firearm charge" in federal court, and Father was sentenced to 60 months' imprisonment.
Mother testified that, in 2004, she was caught trying to hide "X pills, weed, and rock cocaine" in her purse and placed on probation for two years. However, Mother violated the terms of her probation by failing to report, and she spent time in jail as a result in 2008. In July 2008, Mother had a baby, M.I.B. In 2009, "there was a CPS allegation that while [she] was on probation [Mother] was selling drugs and [had] parties where people were using drugs." In March 2009, Mother and Father met and began a relationship. In January 2010, when M.D.W. was born, Mother tested positive for cocaine. In 2010, Father was again charged with possession of a controlled substance, cocaine.
In June 2011, after spending a year in prison for a probation violation, Father moved in with Mother and their children. In February 2012, Mother and Father were referred to Family Based Safety Services (FBSS) following allegations they had left their children alone and had used drugs. At that time, the children were still living with Mother and Father. FBSS caseworker Chay Griggs was assigned to Mother and Father's case from February 2012 until October 2013. Mother stated she was bipolar, and Griggs monitored her "to follow up with mental health services." Both Mother and Father "needed to do parenting and then there would be random drug tests."
In March 2013, Mother and Father both signed a service plan after meeting with Griggs. At the time, two of the children were diagnosed with ADHD and were bipolar. Both children were prescribed Clonidine. Mother admitted to Griggs that she was bipolar, but she refused to take any medication. On April 18, 2013, Father tested positive for cocaine. As a result of Father's positive test, Griggs "did a safety plan out of the home" under which Father was not to live in the home and was to have only supervised contact with the children. In May 2013, Griggs received an email from a department supervisor indicating that a report was "made on this case stating that the family was living with no lights on in their home and that the children were dirty and not bathing, wearing dirty clothes with their hair not groomed." Griggs spoke to Mother, who said the landlord was not going to fix anything in the home, and the family was living in a hotel room at the Deluxe Inn, but Mother was "trying to move into another apartment."
From the outset of the case, Griggs was acquainted with J.M.B., the owner of the children's daycare facility. J.M.B. said she often cared for the youngest male child born in 2012, J.Q.W., and she expressed concern to Griggs about the cleanliness and appearance of the children. In June 2013, Griggs spoke with J.M.B., who stated she told Mother she would not help Mother any more as long as Mother was with Father. J.M.B. related a conversation in which Mother said Father "wants to just get high," and he took Mother's "last five dollars and went and got high." Mother said Father got a warehouse job, but "he had to do a drug test and he failed it." In July 2013, Mother told Griggs she was thinking about suicide because Father had "told her that he didn't want to be with her and that he had another girlfriend." At the time, Mother was pregnant, and Father said "he didn't want anything to do with the baby."
The decrees terminating Mother's and Father's parental rights were signed August 14, 2015. Mother and Father filed timely notices of appeal. On October 30, 2015, J.M.B. filed a pro se document stating her desire to appeal from "all portions of the District Court Judgment." Thus, to the extent J.M.B.'s filing constituted a notice of appeal, such notice was untimely. See TEX. R. APP. P. 26.1(b).
On August 12, 2013, Griggs received notice Father had tested positive for cocaine. On August 15, 2013, Griggs met with Mother and Father and discussed the "severity of using drugs and trying to care for the children at the same time." Father told Griggs he had "opened up to his family and felt like now that he had, that they would be a support system for him to help him get the help that he needed." On August 25, 2013, Griggs spoke with M.I.B. at his school, and M.I.B. told her that he heard Mother and Father arguing the night before when M.I.B. was in his room. On September 13, 2013, Mother told Griggs that Father "babysits [the children] at his sister's home" even though Griggs reminded Mother that Father was not permitted to "be unsupervised with the children."
On October 4, 2013, Mother called Griggs and said that "the constables were looking for her because she had two warrants." Mother "felt like she would be arrested either that day or the next day." Griggs and Mother discussed placing the children with various family members or J.M.B., but Mother said "none of those people will do it." Griggs mentioned that J.M.B. would take J.Q.W. because J.M.B. "had been taking care of him most of his life at that time." After the conversation, Griggs contacted several potential placements for the children in order to avoid a removal of the children if Mother was arrested.
Griggs subsequently called Mother "to see if she was going to answer the phone and see if she had turned herself in already." Mother answered the phone and said she was "in a room." Mother "wasn't completing her sentences and slurring her words." Mother said she "wasn't feeling good and was turning herself in tomorrow." Mother indicated the children were with "Ms. Lucky," and Lucky was going to care for the children while Mother was in jail. Mother was worried the children had not eaten, and she had no way to get them food. Mother said the day care was supposed to drop off the children in the room, but J.Q.W. was with J.M.B.. Griggs asked Mother to buy food, and they agreed Griggs would pick up the food and deliver it. Griggs later learned Mother was staying in a hotel room, and Lucky was staying with the children at their home. While the children were still with Lucky, Griggs received a call from the hospital saying Mother had "overdosed on Clonodine and did it in front of the children." Griggs conferred with her department supervisor and department program director, who advised that the children be removed but then suggested that Father could take the children if he could test clean for drugs. Father had passed drug tests on July 13 and September 6, but Father said he could not leave his job to come in and take another drug test that, if he had passed, would have allowed him to take the children. The department therefore removed the children.
At the time the children were removed in October 2013, M.I.B. told one of Griggs's co-workers "something about his parents fighting, arguing and dad hit mom in the face." After the children were removed, the case was transferred from FBSS to Nicole Noel, a department conservatorship case worker. Noel remained assigned to the case until May 2014. In late October 2013, Mother tested positive for cocaine at a level of 6803 milligrams, and Father tested positive for cocaine at a level of 20,000 milligrams. Following a hearing, Mother was ordered to complete parenting classes, a psychological evaluation, counseling, random drug and alcohol urinalysis, a psychiatric evaluation, domestic violence counseling, and anger management counseling.
Because J.M.B.'s daycare was "under investigation" at the time the children were removed, the department did not voluntarily place the children with her. However, J.M.B. obtained a court order placing the children with her in December 2013.
Mother tested positive for cocaine "a couple of times" in both 2014 and 2015. However, in May 2014, Mother had "a couple of clean drug tests," she had been working her services, and she "had been making good progress on her case." As a result, the children were returned to Mother on a monitored basis. One of the terms of the monitored return required that Father would not reside with Mother and would not have overnight visitation with the children. Nevertheless, M.I.B. told Noel after the monitored return that Father stayed with Mother on the weekends, and there was nobody present who was approved to supervise Father's visits with the children. M.D.W. and Z.J.W. also told Noel that Father was "staying over there." Noel asked Mother about the situation, but Mother denied that Father was "over there."
In May 2014, caseworker Ashley Gaines was assigned to assist Noel with the monitored return, and Gaines became the official caseworker on the case in June 2014. In May 2014, Gaines was doing a walkthrough of Mother's apartment when she observed two containers of men's clothing, men's hygiene products on a vanity, and "men's hat stacks and cologne bottles" in a closet. A pair of men's shorts were draped across a baby bed. When questioned, Mother denied that Father was living in the apartment but stated he was storing some of his belongings there.
In June 2014, Gaines went to Mother's apartment one morning around 8:00 a.m. to get Mother's signature on some documents to help her with her rent. During another walkthrough of the apartment, Gaines discovered Father sitting on a toilet in the dark. Gaines believed Father had stayed at the apartment "possibly overnight" and, "either way, he was there without the proper supervision." Because of this violation of the court order, the children were once again removed and placed in foster care. In November 2014, Father was referred to drug counseling, but the counseling was canceled due to "excessive no-shows and cancellations."
In March 2015, the children were again returned to Mother on a monitored basis. A subsequent hair test showed Mother was positive for cocaine at a level of 2795 milligrams, and the children were once again removed. In April 2015, the department sought termination of Mother's and Father's parental rights and the appointment of the department as managing conservator of the children. Following a trial before the court, the trial court signed an order terminating Mother's and Father's parental rights. These appeals followed.
In Mother's first and second issues, she argues the evidence is legally and factually insufficient to show (1) she knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being and (2) she engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children. Similarly, in Father's first, second, and third issues, he argues the evidence is legally and factually insufficient to support termination of his parental rights based upon the grounds found by the trial court: (1) he knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being; (2) he engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; (3) he failed to comply with the provisions of a court order that specifically established the actions necessary for a parent to obtain the return of a child that had been in the conservatorship of the department; and (4) used a controlled substance in a manner that endangered the health or safety of the child and a) failed to complete a court-ordered substance abuse treatment program or b) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance.
Because termination of parental rights is complete, final, and irrevocable, the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights. See, e.g., In re A.B., 437 S.W.3d 498, 502-03 (Tex. 2014); In re J.D.B., 435 S.W.3d 452, 462 (Tex. App.—Dallas 2014, no pet.). "Clear and convincing evidence" is "the measure or degree of 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." TEX. FAM. CODE ANN. § 101.007 (West 2014).
On appeal, we apply a standard of review that reflects the elevated burden at trial. In re J.D.B., 435 S.W.3d at 462 (citing In re A.B., 437 S.W.3d at 502-03; In re A.T., 406 S.W.3d 365, 370 (Tex. App.—Dallas 2013, pet. denied)); In re A.E., No. 05-14-01340-CV, 2015 WL 1184179, at *5 (Tex. App.—Dallas Mar. 16, 2015, pet. denied) (mem. op.). This means both legal and factual sufficiency review of a decree terminating parental rights require a reviewing court to consider all the evidence to determine whether the fact-finder could reasonably form a firm belief or conviction that the grounds for termination are proven. In re J.D.B., 435 S.W.3d at 462 (citing In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002)). Further, under both the legal and factual sufficiency standards, the appellate court must defer to the fact-finder's determinations as to witness credibility. In re A.E., 2015 WL 1184179, at *5.
In evaluating the evidence for legal sufficiency in a termination case, we view the evidence in the light most favorable to the finding. In re J.D.B., 435 S.W.3d at 462; In re T.A.D., 397 S.W.3d 835, 839 (Tex. App.—Dallas 2013, no pet.). We "consider all the evidence, not just that which favors the verdict," and we assume the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. In re J.D.B., 435 S.W.3d at 462-63 (citing In re J.P.B, 180 S.W.3d 570, 573 (Tex. 2005)). We disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. Id. at 463; see In re K.M.L., 443 S.W.3d 101, 116 (Tex. 2014).
When reviewing the factual sufficiency of the evidence supporting a termination finding, an appellate court asks whether, in light of the entire record, the evidence is such that a fact-finder could reasonably form a firm conviction about the truth of the State's allegations. In re A.E., 2015 WL 1184179, at *5. Further, the appellate court must consider whether the disputed evidence is such that a reasonable fact-finder could not have reconciled that disputed evidence in favor of its finding. In re J.D.B., 435 S.W.3d at 463. If the disputed evidence is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. See id.; In re A.E., 2015 WL 1184179, at *5.
A trial court may terminate the parent—child relationship if the fact-finder finds by clear and convincing evidence that (1) the parent committed one or more of the enumerated acts or omissions justifying termination under section 161.001(1) of the Texas Family Code and (2) termination of parental rights is in the child's best interest. TEX. FAM. CODE ANN. § 161.001(1)-(2) (West 2014). Both elements must be established, and each required finding must be based on clear and convincing evidence. See, e.g., In re J.D.B., 435 S.W.3d at 463. Only one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest. Id. (citing In re A.V., 113 S.W.3d 355, 362 (Tex.2003)).
Amended by Act of Mar. 30, 2015, 84th Leg., R.S., ch.1, § 1.078, 2015 Tex. Sess. Law Serv. 1, 18-20 (West) (codified at TEX. FAM. CODE ANN. § 161.001(b)) (eff. Apr. 2, 2015). We note that the recent amendment of section 161.001 does not affect our resolution of Mother's issues because provisions identical to the relevant provisions of the former version appear in the current version. The only change respecting those provisions is to the subsection numbers. We cite the former statute in this opinion.
Pursuant to section 161.001(1), acts or omissions justifying termination of parental rights include, inter alia, (1) knowingly placing or knowingly allowing the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child, see TEX. FAM. CODE ANN. § 161.001(1)(D) ("subsection (D)"); (2) engaging in conduct or knowingly placing the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, see id. § 161.001(1)(E) ("subsection (E)"); and (3) using a controlled substance in a manner that endangered the health or safety of the child and failing to complete a court-ordered substance abuse treatment program or, after completion of a court-ordered substance abuse treatment program, continuing to abuse a controlled substance, see id. § 161.001(1)(P) ("subsection (P)").
"Endanger" means to expose to loss or injury or jeopardize a child's emotional or physical health. In re J.D.B., 435 S.W.3d at 463. It is not necessary that the conduct be directed at the child or that the child actually suffer an injury. Id. The primary distinction between subsections (D) and (E) is the source of the physical or emotional endangerment to the child. Id. Subsection (D) addresses the child's surroundings and environment, while subsection (E) specifically addresses parental conduct. Id. However, conduct of the parent or another can be relevant to the child's environment under subsection (D). Id. That is, "[c]onduct of a parent or another person in the home can create an environment that endangers the physical and emotional well-being of a child as required for termination under subsection (D)." Id. at 464 (quoting Castaneda v. Tex. Dep't of Protective & Regulatory Servs., 148 S.W.3d 509, 522 (Tex. App.—El Paso 2004, pet. denied)). "Inappropriate, abusive, or unlawful conduct by persons who live in the child's home is part of the 'conditions or surroundings' of the child's home under subsection (D)." Id. (citing In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) ("A child is endangered when the environment creates a potential for danger that the parent is aware of but disregards.")).
Here, both Mother and Father had a history of testing positive for cocaine, and both continued to test positive for cocaine after the children were removed. The children were twice returned to Mother on a monitored basis, but she violated a court order by allowing Father unsupervised access to the children during the first return and testing positive for cocaine during the second return. This evidence is legally and factually sufficient to show both Mother and Father knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being. See In re J.D.B., 435 S.W.3d at 462. Mother's and Father's ongoing drug abuse posed an emotional and physical danger to the children in the past and in the future, and both Mother and Father failed to take advantage of treatment opportunities. See In re R.F., 115 S.W.3d 804, 811 (Tex. App.—Dallas 2003, no pet.). We overrule Mother's and Father's first and second issues.
In her third issue, Mother argues the evidence is legally and factually insufficient to show termination of her parental rights was in the best interests of the children. In his third issue, Father also argues the evidence is factually insufficient to show termination of his parental rights was in the children's best interests.
"A strong presumption exists that the best interest of the child is served by keeping the child with his or her natural parent." In re A.E., 2015 WL 1184179, at *5 (citing In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)). Factors that may be considered in determining whether termination of parental rights is in a child's best interest include (1) the child's desires; (2) the child's age and emotional and physical needs now and in the future; (3) any emotional and physical danger to the child now and in the future; (4) the parenting abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the best interests of the children; (6) the plans for the children by the individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of a parent. In re R.F., 115 S.W.3d at 811; see In re A.E., 2015 WL 1184179, at *5-6; see also Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). "These factors are not exhaustive, and the absence of some of these factors does not preclude a best interest finding, particularly if undisputed evidence shows the parental relationship endangered the child's safety." In re A.E., 2015 WL 1184179, at *6 (citing In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)).
Here, at the time of termination, M.I.B. was seven years old, and the other children were between one and five years old. The three girls, M.D.W., Z.J.W., and J.W., were placed in foster family homes where the families were willing to adopt them. M.I.B. was on medication for ADHD but was being cared for and getting the attention he needed. Thus, all of the children were very young and in need of emotional and physical support on an ongoing basis. The record shows all of the children were receiving such support. Mother and Father demonstrated an inability to put the needs of the children first and stop using drugs. Mother refused to take her medication for her bipolar disorder, continued to test positive for cocaine, and failed to successfully abide by the terms of two monitored returns. Father continued to test positive for cocaine and remained unsupervised with the children despite a court order prohibiting him from unsupervised visits. We conclude this evidence was legally and factually sufficient to show the termination of Mother's and Father's parental rights was in the best interests of the children. See id.; In re J.D.B., 435 S.W.3d at 462-63. We overrule Mother's and Father's third issues.
In her fourth issue, Mother argues the evidence is legally and factually insufficient to support the appointment of the department as managing conservator. The quantum of proof required to support a conservatorship appointment differs from the level necessary to support a termination decision. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Specifically, conservatorship determinations are subject to review for abuse of discretion. Id. Therefore, we reverse the trial court's appointment of a managing conservator only if we determine it was arbitrary or unreasonable. Id.
Texas Family Code section 161.207(a) provides in part that if the court terminates the parent-child relationship with respect to both parents or to the only living parent, the court shall appoint "a suitable, competent adult," the Department, or a licensed child-placing agency as managing conservator of the child. TEX. FAM. CODE ANN. § 161.207(a) (West 2014). Further, an order terminating the parent-child relationship generally "divests the parent and the child of all legal rights and duties with respect to each other, except that the child retains the right to inherit from and through the parent unless the court otherwise provides." Id. § 161.206(b) (West 2014).
Amended by Act of March 30, 2015, 84th Leg., R.S., S.B. 219, § 1.088 (to be codified as an amendment to TEX. FAM. CODE ANN. § 161.207) (eff. Apr. 2, 2015). The recent revisions to section 161.207(a) do not change the provisions described above. We cite the former version of the statute in this opinion. --------
Here, Mother argues she should have been appointed the children's managing conservator. Mother's argument ignores her continued drug use and failure to complete two monitored returns. In the alternative, Mother argues J.M.B. should have been appointed managing conservator of M.I.B. and J.Q.W., noting J.M.B. had "been caring for J.Q.W. for the entirety of his life." Mother argues Father's sister should have been appointed managing conservator of the remaining children. However, Mother fails to specify how the appointment of the department as managing conservator of the children constituted an abuse of discretion. Given our determination that the evidence supported termination of Mother's and Father's parental rights and termination was in the best interests of the children, the trial court did not abuse its discretion in appointing a managing conservator that would more greatly restrict Mother's and Father's access to the children in the future. See In re J.A.J., 243 S.W.3d at 616. We overrule Mother's fourth issue.
We affirm the trial court's decrees terminating Mother's and Father's parental rights.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE 151041F.P05
JUDGMENT
On Appeal from the 302nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-10-13224-U.
Opinion delivered by Justice Bridges. Justices Francis and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered February 19, 2016.
JUDGMENT
On Appeal from the 302nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-13-18933-U.
Opinion delivered by Justice Bridges. Justices Francis and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered February 19, 2016.
JUDGMENT
On Appeal from the 302nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-14-10757-U.
Opinion delivered by Justice Bridges. Justices Francis and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered February 19, 2016.
JUDGMENT
On Appeal from the 302nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-13-18931-U.
Opinion delivered by Justice Bridges. Justices Francis and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal. Judgment entered February 19, 2016.