Opinion
04-24-00086-CV
07-31-2024
IN THE INTEREST OF M.E.G.-C., a Child
From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2022PA01633 Honorable Kimberly Burley, Judge Presiding
Sitting: Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
LIZA A. RODRIGUEZ, JUSTICE
Mother appeals from the trial court's judgment terminating her parental rights to fifteen-month-old M.E.G.-C. We affirm.
To protect the identity of the minor child, we refer to the child and the parties by fictitious names, initials, or aliases. See Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8(b)(2).
BACKGROUND
On October 7, 2022, the Department of Family and Protective Services ("the Department") filed the underlying suit to terminate Mother's parental rights, along with an affidavit in support of emergency removal of the child. The trial court appointed the Department the child's temporary sole managing conservator, and the child was placed in the care of a foster family. After a bench trial, the trial court terminated Mother's parental rights pursuant to section 161.001(b)(1)(E) and (O) of the Texas Family Code. The trial court also found that termination of Mother's parental rights was in the best interest of the child. On appeal, Mother argues the evidence is legally and factually insufficient to support the trial court's best-interest finding. We affirm.
SUFFICIENCY OF THE EVIDENCE
A. 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 that parental rights should be terminated pursuant to one of the predicate grounds in subsection 161.001(b)(1) and that termination of parental rights is in the best interest of the child. Tex. Fam. Code § 161.001(b)(1), (2). In reviewing the legal sufficiency of the evidence to support these findings, we 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.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). In reviewing the factual sufficiency of the evidence, we consider disputed or conflicting evidence. Id. at 345. "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." Id. (quoting In re J.F.C., 96 S.W.3d at 266). Under these standards, the factfinder is the sole judge of the weight and credibility of the evidence. Id. at 346.
B. BEST INTEREST OF THE CHILD
In her sole issue, Mother argues the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights is in the child's best interest. See Tex. Fam. Code § 161.001(b)(2); In re J.O.A., 283 S.W.3d at 344 (explaining legal and factual sufficiency standard). There is a strong presumption that the best interest of a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In determining whether the child's parent is willing and able to provide the child with a safe environment, the trial court should consider the relevant factors set out in section 263.307. See Tex. Fam. Code § 263.307(b). In addition to these statutory factors, in considering the best interest of the child, a factfinder may also consider the nonexclusive list of factors set forth by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The Holley factors are neither all-encompassing nor does a court need to find evidence of each factor before terminating the parent-child relationship. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); see In re E.A.R., 672 S.W.3d 716, 722 (Tex. App.-San Antonio 2023, pet. denied) (noting that a best-interest finding does not require proof of any particular factor). "Evidence of a single factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest." In re E.A.R., 672 S.W.3d at 722 (quoting In re J.B.-F., No. 04-18-00181-CV, 2018 WL 3551208, at *3 (Tex. App.-San Antonio July 25, 2018, pet. denied)). Finally, in determining whether termination of the parent-child relationship is in the best interest of a child, a factfinder may also judge a parent's future conduct by her past conduct. In re E.A.R., 672 S.W.3d at 722; In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). The predicate grounds for termination may also be probative of best interest. In re C.H., 89 S.W.3d at 28; In re E.A.R., 672 S.W.3d at 722.
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, the child's parents, other family members, or others who have access to the child's home; (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, including providing the child and other children under the family's care with: (A) minimally adequate health and nutritional care; (B) care, nurturance, and appropriate discipline consistent with the child's physical and psychological development; (C) guidance and supervision consistent with the child's safety; (D) a safe physical home environment; (E) protection from repeated exposure to violence even though the violence may not be directed at the child; and (F) an understanding of the child's needs and capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. Tex. Fam. Code § 263.307(b).
These factors include, but are not limited to, the following: (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 these individuals to promote the child's best interest; (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 parent's acts or omissions that may indicate the existing parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013) (citing Holley, 544 S.W.2d at 371-72).
C. ANALYSIS
At trial, the evidence showed that the child was born with illegal drugs in his system. While at the hospital for the child's delivery, Mother tested positive for methamphetamines and amphetamines. Mother admitted that she had used illegal drugs during her pregnancy and that she had not obtained any prenatal care. When he was seven days old, the child experienced seizures caused by the lack of prenatal care. The child spent ten days in the neonatal intensive care unit.
By the time of trial, the child was fifteen months old. He had been diagnosed with a multitude of medical conditions and was receiving care from thirteen medical specialists, including a neurologist, a urologist, a gastroenterologist, an endocrinologist, a podiatrist, and an ear, nose, and throat doctor. One of the child's medical conditions was neurofibromatosis, a genetic disorder that placed him at risk for cancer, tumors, scoliosis, bone deformities, and behavioral issues. The child required constant monitoring for cancer. The child also had significant reflux, which caused him to vomit and have difficulty eating. Because of his reflux, the child could not be left unattended while eating or drinking. The child's foster mother testified: "He has to be held in a sitting position when given even something as simple as a bottle with his formula," and "for [the child] to consume a grape, we[] have to remove the peel from the grape and then cut it almost microscopically, so that he can safely eat it." She added: "He requires a significant amount of one-on-one care when it comes to his three meals a day, his snacks, and then his formula throughout the day." The child also had hammertoes, which are the tightening of tendons in his feet. The child was able to walk a couple of steps, but he could not do so independently. The child was also receiving physical, occupational, and speech therapy several times a week. Furthermore, as he grows, the child will likely continue to suffer from medical conditions that will require treatment from health care providers.
At the beginning of the case, Mother signed a service plan, which required her to participate in specific services, obtain employment, and maintain adequate housing. But Mother did not begin participating in services until after the case had been pending for six months. On May 10, 2023, Mother entered inpatient drug treatment. By her own admission, she was using illegal drugs until she began inpatient drug treatment. Mother was successfully discharged from inpatient treatment on July 24, 2023, but she did not begin outpatient drug treatment until November 8, 2023. When the termination trial began on December 13, 2023, Mother was attending outpatient group sessions three evenings a week and was participating individual counseling. Mother had not found a job.
Mother's service plan also required her to comply with "all random drug/alcohol testing" "at the discretion of the Department." Her service plan expressly stated: "Refusals to test, not showing up for a test, or refusing to take the test for any reason may be viewed as a positive test result." Nevertheless, Mother did not comply with all the drug testing as required. Since she left inpatient drug treatment on July 24, 2023, Mother had failed to attend fifteen of twenty-one drug tests requested by the caseworker. The caseworker explained that when she requested a drug test from Mother, Mother had twenty-four hours to complete it. Sometimes Mother showed up for the drug test several days late. Mother never told caseworker why she missed the drug tests. At trial, Mother claimed that it was hard for her to get a ride to the testing site.
The caseworker initially testified that Mother was "in compliance with her drug testing." However, she later testified that Mother had been sent for drug testing twenty-one times and had missed fifteen of them and, therefore, Mother was "noncompliant as far as attending when I sent her." Additionally, when asked if there were "any concerns" about the six times Mother did attend drug testing, the caseworker answered, "Yes."
In addition to the child in this case, Mother had five other children between the ages of three and eight. These children were being cared for by their maternal grandmother, who had primary custody of them. Mother testified that if the child was returned to her, she and the child would live at her mother's house until she found a job and a place to rent. However, according to the caseworker, the plan was not for Mother and the child to live with the maternal grandmother. The plan that Mother and the caseworker had discussed involved Mother getting a job and finding her own place to live. Additionally, the caseworker pointed out that the maternal grandmother was unwilling to care for this child, too.
The caseworker had asked Mother to attend the child's medical appointments so she could learn about the child's medical conditions. Early on, in January 2023, the foster mother began informing Mother of the child's medical appointments and communicating with her via email. However, in March 2023, all emails from Mother ceased. Around the same time, Mother also stopped participating in visits with the child. Mother did not send another email inquiring about the child's medical appointments until October 3, 2023. In that email, Mother asked for details about a medical appointment that was scheduled for the same day.
The child had been placed with the foster family since he first came home from the hospital. The foster family consisted of the foster mother, who was a nurse, and her mother, the child's foster grandmother. The foster mother had taken the child to eighty-one medical appointments. Mother had attended only six of these appointments. According to the foster mother, Mother did not pay attention when she attended the child's medical appointments. In fact, Mother's behavior was disruptive because she treated the appointments like it was her visitation time. After each appointment, the foster mother had to explain to Mother what had transpired. The foster mother hoped to adopt the child. She understood the child's medical conditions might require her to care for the child into adulthood. She was prepared to be responsible for the child's welfare, even if his conditions required her to continue to care for him into his adulthood.
The caseworker believed that termination of Mother's parental rights was in the child's best interest because of Mother's repeated failures to submit to drug testing, her inability or unwillingness to educate herself about the child's extensive medical needs, and her inability to or unwillingness to provide for the child's basic needs. The caseworker further testified that she had observed the child with his foster family, whom she described as "engaged" with him. In her opinion, the child was very attached to his foster family. She believed that it would be in the child's best interest for the child to continue living with his foster family.
In support of this issue, Mother argues she "has arguably completed most of the significant portions" of her service plan and "is making progress in her recovery." However, the evidence showed that Mother had engaged in illegal drug use both during and after her pregnancy. "A parent's illegal drug use supports a finding that termination of the parent-child relationship is in the best interest of the child." In re A.M.O., No. 04-17-00798-CV, 2018 WL 2222207, at *2 (Tex. App.-San Antonio, May 16, 2018, no pet.). "The factfinder can give great weight to the significant factor of drug-related conduct." In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.- Houston [14th Dist.] 2016, pet. denied). Additionally, even after successfully completing inpatient drug treatment, Mother repeatedly failed to submit to drug testing when requested. From these failures, the trial court could have inferred that Mother was continuing to use illegal drugs. See In re E.A.R., 672 S.W.3d at 723 ("The trial court, however, could infer that Father failed to submit to drug testing because he was using illegal drugs."). The trial court also could have focused on Mother's delay in engaging in services, her inattention during the child's medical appointments, and the high level of care required by the child, and determined from this evidence that termination of Mother's rights was in the child's best interest. In re L.G.R., 498 S.W.3d at 205 (concluding "Mother's history of endangering conduct, drug use during pregnancy, lack of stable employment, and apparent inability to comprehend the [c]hild's medical needs" supported trial court's finding that termination of Mother's parental rights was in the child's best interest). Furthermore, "[w]hen a child is too young to express [his] desires, the factfinder may consider that the child has bonded with the foster family, is well cared for by them, and has spent minimal time with a parent." See id.
After reviewing all the evidence in the light most favorable to the trial court's finding, we conclude a reasonable factfinder could have formed a firm belief or conviction that the termination of Mother's parental rights was in the child's best interest. Additionally, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is not so significant that a factfinder could not reasonably have formed a firm belief or conviction that termination of Mother's parental rights was in the child's best interest. Accordingly, we hold the evidence is legally and factually sufficient to support the trial court's best-interest finding.
Conclusion
For the reasons stated above, we affirm the trial court's judgment terminating Mother's parental rights.