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stating that unchallenged fact finding is binding unless it is unsupported by evidence and holding evidence sufficient to support termination finding under subsection (O), which mother conceded on appeal
Summary of this case from In re G.H.Opinion
NO. 14-17-00711-CV
02-01-2018
IN THE INTEREST OF N.J.D AND A.W., CHILDREN
On Appeal from the 313th District Court Harris County, Texas
Trial Court Cause No. 2015-07371J
MEMORANDUM OPINION
Appellant A.W. ("Mother") appeals the trial court's final decree terminating her parental rights and appointing the Department of Family and Protective Services as sole managing conservator of N.J.D. ("Nate") and A.W. ("Arthur"). Nate and Arthur have different fathers. Nate's father's rights were not terminated, and Nate's father was appointed joint managing conservator with Nate's paternal great-grandmother. Arthur's father's rights were terminated. Arthur's father has not appealed the termination of his parental rights. Mother's parental rights were terminated on the predicate grounds of endangerment and failure to comply with a family service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), and (O) (West Supp. 2017). The trial court further found that termination of the parents' rights was in the best interest of the children.
Pursuant to Texas Rule of Appellate Procedure 9.8, we use fictitious names to protect the identities of the minors.
In two issues Mother challenges the factual sufficiency of the evidence to support the trial court's findings that termination is in the best interest of the children, and that the Department should be appointed managing conservator of the children. We affirm because (1) the evidence is factually sufficient to support the trial court's finding that termination is in the children's best interest, and (2) the trial court did not abuse its discretion in appointing the Department managing conservator of the children.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Proceedings
On December 10, 2015, when Nate was eight years old and Arthur was one year old, the Department received a referral reporting that Mother left both children at home alone. Before Mother left she tied up Nate's hands so he could not hit Arthur. Mother was arrested and charged with endangering a child. Mother explained that she left to pay the rent at the apartment complex. An investigation revealed that Mother had a history of leaving the children unattended. The children were placed with their maternal grandmother.
Investigators also noted that Nate was not as verbally developed as an eight-year-old should be. Nate initially told investigators he was six years old, but later remembered he was eight years old. Nate appeared to have an injury on his foot that he claimed came from the playground. Mother explained that she went to pay the rent, but no one was in the apartment complex office. When Mother returned to her apartment, the leasing agent was there changing the locks. Mother reported no criminal or Department history.
Contrary to Mother's statement, the Department's investigation revealed two prior referrals of neglect of Nate by Mother. The first referral was in December 2012 when Nate was five years old. Nate was found outside alone by a passerby. Nate was later returned to Mother. Two years later, Mother left Nate with his father's girlfriend. Nate needed a psychological evaluation, but the girlfriend did not have the correct documents and was unable to get him medical attention. The Department had Mother sign a Non-parent Authorization form to permit the girlfriend to obtain medical care for Nate.
The Department concluded that all reasonable efforts were made to prevent the necessity of removal. However, there was a substantial risk of continuing danger to the children due to Mother leaving them unattended and subsequently being arrested for endangering a child. The Department also cited Mother's history of leaving the children unattended and Nate's father's excessive criminal history as reasons for removal.
Following a temporary hearing the Department was appointed temporary managing conservator of the children. After a status hearing, the trial court ordered compliance with a family service plan, which required Mother to:
• attend all court hearings, permanency conference meetings and family visits;
• enroll, attend and participate in parenting classes that are at least six to eight weeks in length;
• acquire and maintain housing that is stable for more than six months;
• acquire and maintain a legal form of employment and provide
documentation in the form of payroll stubs to the caseworker;
• submit to random urine analysis; and
• participate fully in a psychosocial evaluation to address her emotional needs.
The trial court's permanency order before final hearing found that Mother had not complied with the family service plan. On June 22, 2016, Mother tested positive for benzoylecgonine, cocaine, and marijuana. Mother again tested positive for marijuana on October 5, 2016.
B. Trial Testimony
At the beginning of trial, a partial mediated settlement agreement was introduced in which Nate's father, C.J., and Nate's paternal great-grandmother agreed to be named joint managing conservators of Nate.
Teresa Espinoza, Mother's psychotherapist, testified that she discussed several goals with Mother. Mother missed five of her therapy sessions, but rescheduled the missed sessions, and actively participated in therapy. Mother addressed and completed the goals of attending parenting classes and finding coping skills to cope with her emotions. After eight sessions with Mother, in Espinoza's professional opinion, Mother could handle parenting one child, but would not be able to safely and appropriately parent Nate unless he was medicated.
Following Espinoza's testimony, the trial was recessed and reconvened approximately one month later. At that time, all of the Department's exhibits were admitted into evidence without objection. Those exhibits included the children's birth certificates, an order establishing parentage of Nate's father, a paternity registry search for Arthur's father, Mother's family service plan, and Mother's drug test results.
Mother testified that the Department was called because she left the children unattended and Nate tied up. Mother said she left the children alone for four to five minutes, and the police were not called until the next day. Mother was ordered to complete a family service plan. Mother denied using cocaine despite a positive drug test in June 2016. Mother explained that she tested positive for marijuana because she was exposed to it by being around her boyfriend who was smoking marijuana. Mother admitted that by associating with someone who was smoking marijuana she jeopardized her chances of having her children returned to her. Mother is no longer seeing that person. Mother has no contact with Arthur's father and does not know where he is. Mother denied any drug use before the children came into the Department's care.
Mother testified that Nate has had behavioral issues since he was four years old. When Nate was five he was diagnosed with Attention Deficit Hyperactivity Disorder. Nate did not receive medication for ADHD until he was six. In parenting classes Mother learned patience and how to react in a situation that was otherwise overwhelming. After taking the classes, Mother learned that she should not have tied Nate's wrists when she left to pay the rent. She explained that she might have moved Nate into another room rather than tie his wrists and hands. Mother has stable housing and recently graduated from school to become a medical assistant. If the children are returned to her she plans to keep them in daycare while she is working, and she has friends that will help her with childcare. Mother is capable of administering Nate's medication on a consistent basis. Mother admitted missing some of her drug tests despite the fact that she was told a missed test would be counted as a positive test.
When asked about the incident in 2012 when Nate was found unattended, Mother explained that he "snuck out the doggy door." Nate, who was five or six at the time, was found by a passerby walking down the street. Mother admitted that while this termination case was pending she was arrested for prostitution, and the arrest was in violation of her service plan.
The Department caseworker testified that she had been on the case for about one year. Mother was given a family service plan and completed some of the services, including maintaining a stable income and stable housing. Mother completed two parenting classes and therapy sessions, but failed to refrain from criminal activity, and failed to remain drug free. The Department has concerns with Mother's housing because at one of the caseworker's random visits, there was a male visitor in the home who Mother would not identify. The Department is concerned about Mother having visitors that she is unwilling to identify to the caseworker.
The caseworker testified that termination was in the best interest of the children because Mother failed to take responsibility for her actions in this case, and is unable to meet the emotional and physical needs of her children. After the prostitution arrest, the Department asked Mother to complete another parenting class, which she did. Mother was not convicted of prostitution; the charge was dismissed.
Nate has been placed with his paternal great-grandmother for about one month. The great-grandmother is meeting all of Nate's emotional needs, and is attending counseling sessions with him.
Arthur's father has not been identified. The Department requested termination of the unknown father's parental rights. Arthur is placed in a foster-to-adopt home that is meeting all of his physical and emotional needs. The family has provided socialization skills, is meeting Arthur's medical and dental needs, and providing strong family support. The foster family is willing to adopt Arthur.
Mother was recalled to testify after the caseworker's testimony. Mother explained that when the children were first removed, she came to visit Arthur and the caseworker asked whether Mother knew about Nate's "out of control" behavior. The caseworker recorded Nate to show his behavior to Mother. Mother responded, "that's what I deal with." Mother explained that the reason she tied Nate up was because he "was fighting everybody." Mother told the Department investigator the night the children were removed that she knew it was wrong to tie Nate up, and that she should not have done it.
Lisa McCartney testified as the "court-appointed expert and special investigator." All parties stipulated to McCartney's qualifications. McCartney reviewed all of the Department records in this case, and testified that Mother's testimony does not reflect what the Department records show.
McCartney testified to the circumstances surrounding the referral in 2012. Nate was found outside when the temperature was 33 degrees. Nate was wearing a T-shirt and a pair of shorts, and no shoes. The police were called, but were unable to locate Mother at home or in the area. Police took Nate to the police station and made contact with Mother later. Mother told the Department that she was working at a nursing home "around the corner" and could not afford to pay for child care. Mother left Nate home alone because the nursing home would not allow her to take time off.
It was McCartney's opinion that Mother continued this neglectful pattern of behavior after Nate was returned in 2012. McCartney testified that this course of conduct endangered the children, and that the conduct was likely to continue in the future. It was McCartney's opinion that Mother does not have appropriate parenting ability to provide for the safety of the children in the future, and the current foster home for Arthur and the grandmother's home for Nate are appropriate and have the proper ability to care for the children's needs.
Mother was recalled to address McCartney's testimony about the 2012 incident. Mother testified that when Nate got out of the house in 2012 she was "half asleep." Mother admitted she lied to the Department because she did not want them to know she was asleep when Nate got out.
After hearing closing argument from Mother's attorney, the trial court found by clear and convincing evidence that it was in the best interest of the children that Mother's and the unknown father's rights be terminated, and that the evidence supported predicate grounds of termination under sections 161.001(b)(1)(D), (E), and (O) of the Texas Family Code. This appeal followed.
In two issues Mother challenges (1) the factual sufficiency of the evidence to support the trial court's finding that termination of her rights is in the best interest of the children, and (2) the legal and factual sufficiency of the evidence to support a finding that appointment of the Department as managing conservator is in Arthur's best interest.
II. ANALYSIS
A. Standards of Review
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Although parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) ("Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.").
Due to the severity and permanency of terminating the parental relationship, Texas requires clear and convincing evidence to support such an order. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "Clear and convincing evidence" means "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. This heightened burden of proof results in a heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
In reviewing the factual sufficiency of the evidence under the clear and convincing burden, we consider and weigh all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. We give due deference to the fact finder's findings and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
In a proceeding to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, the petitioner must establish, by clear and convincing evidence, one or more acts or omissions enumerated under subsection (1) of 161.001(b) and that termination is in the best interest of the child under subsection (2). Tex. Fam. Code Ann. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
B. Predicate Grounds
The trial court made predicate termination findings that Mother had committed acts establishing the grounds set out in subsections D, E, and O of section 161.001(b)(1), which provide that termination of parental rights is warranted if the fact finder finds by clear and convincing evidence, in addition to the best-interest finding, that the parent has:
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), and (O).
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; [or]
(O) 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 of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child[.]
Mother concedes that the evidence is sufficient to support the predicate termination finding under section 161.001(b)(1)(O). An unchallenged fact finding is binding on us "unless the contrary is established as a matter of law, or if there is no evidence to support the finding." McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); see In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (unchallenged findings of fact supported termination under section 161.001(1)(O) because record supported those findings).
We have reviewed the record and conclude that the record supports the unchallenged finding. The evidence is undisputed that Mother did not complete the requirements of her service plan, specifically she failed to remain drug free and to refrain from criminal activity. We conclude the evidence is legally and factually sufficient to support the trial court's determination that termination of Mother's parental rights was justified under section 161.001(b)(1)(O) of the Family Code. See In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.
C. Best Interest of the Children
Mother challenges the factual sufficiency of the evidence to support the trial court's finding that termination is in the children's best interest.
The factors the trier of fact may use to determine the best interest of the child include: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons seeking custody; (5) the programs available to assist those persons seeking custody in promoting the best interest of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parents' acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to consider in evaluating parents' willingness and ability to provide the child with a safe environment).
A strong presumption exists that the best interest of the children is served by keeping the children with their natural parents, and the burden is on the Department to rebut that presumption. In re U.P., 105 S.W.3d at 230. Prompt and permanent placement of the children in a safe environment also is presumed to be in the children's best interest. Tex. Fam. Code Ann. § 263.307(a).
Multiple factors support the trial court's determination that termination of the parents' rights was in the children's best interest.
1. Desires of the children
At the time of trial Nate was nine years old, and Arthur was three years old. Pursuant to a mediated settlement agreement, Nate was living with his paternal great-grandmother. Arthur was with a foster family who wanted to adopt him. The record does not reflect either child's desires. 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 J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Evidence at trial showed that Nate's great-grandmother is meeting all of his emotional needs, and is attending counseling sessions with him. With regard to Arthur, the caseworker testified that Arthur is placed in a foster-to-adopt home that is meeting all of his physical and emotional needs. The family has provided socialization skills, is meeting Arthur's medical and dental needs, is providing strong family support, and is willing to adopt Arthur. This factor supports the trial court's best-interest finding.
2. Present and future physical and emotional needs of the children
Regarding this factor, we note that the need for permanence is a paramount consideration for the children's present and future physical and emotional needs. See In re D.R.A., 374 S.W.3d at 533. Mother admits that the evidence shows that both children's present physical and emotional needs are being met. Mother argues, however, that the evidence does not show that Mother could not at some point in the future provide stability. A fact finder may infer from a parent's past inability to meet the child's physical and emotional needs an inability or unwillingness to meet the child's needs in the future. See In re J.D., 436 S.W.3d at 118. Although there is no direct evidence of Mother's ability to provide stability in the future, the trial court was entitled to infer from Mother's past inability to remain drug free and refrain from criminal activity that she would be unable to provide stability for the children in the future.
3. Present and future physical and emotional danger to the children
The same evidence of acts or omissions used to establish grounds for termination under section 161.001(b)(1) may be probative in determining the best interest of the child. In re C.H., 89 S.W.3d at 28; In re D.R.A., 374 S.W.3d at 533. Specifically, the court was permitted to consider the evidence that Mother left both children alone, and tied up Nate so that he would not hit Arthur. The court could further consider that while the termination case was pending, Mother continued to use illegal drugs and did not refrain from criminal activity.
Mother's incarceration for drug offenses also presents a risk to the children's physical and emotional well-being. See In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.) ("[I]ntentional criminal activity which exposed the parent to incarceration is relevant evidence tending to establish a course of conduct endangering the emotional and physical well-being of the child."); see also In re S.R., 452 S.W.3d 351, 366-67 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (evidence of father's criminal activity supported trial court's best interest finding).
4. Parental abilities of the individuals seeking custody; programs available to assist those individuals seeking custody; plans for the children by the parties seeking custody; and stability of the home or proposed placement
With regard to these factors Mother admits that Nate's great-grandmother is "appropriate and nurturing," and Arthur's foster caregivers are licensed and "reportedly appropriate." Mother further notes that the foster parents are seeking adoption and the current placements "are meeting all of the children's needs." Each of these factors weighs in favor of the trial court's finding of best interest.
5. Acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate, and any excuse for the parent's acts or omissions
Mother argues that she would be assisted by continuing parenting classes and individual therapy sessions. She recognizes that she used poor judgment in leaving both children alone while one was tied up, but argues she has learned through classes and therapy that her behavior was inappropriate.
Mother's drug abuse and its attendant unstable lifestyle, plus her inability to refrain from criminal activity, support the best-interest determination. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (explaining that parent's history of drug use is relevant to trial court's best-interest finding); see also In re S.R., 452 S.W.3d at 366-67 (the fact finder may infer from past conduct endangering the child's well-being that similar conduct will recur if the child is returned to the parent). The trial court may reasonably determine that a parent's changes shortly before trial are too late to impact the best-interest decision. See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied).
Viewing all of the evidence equally for our factual sufficiency analysis, we conclude that a reasonable fact finder could have formed a firm belief or conviction that termination of both parents' rights was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). We overrule Mother's first issue.
D. Conservatorship
In her second issue Mother challenges the legal and factual sufficiency of the evidence to support a finding that appointment of the Department as managing conservator is in Arthur's best interest. We review the trial court's determination of conservatorship under an abuse of discretion standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). We will reverse a trial court's conservatorship determination only if the decision is arbitrary and unreasonable. In re C.A.M.M., 243 S.W.3d 211, 215 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. In re A.H.A., No. 14-12-00022-CV, 2012 WL 1474414, at *11 (Tex. App.—Houston [14th Dist.] Apr. 26, 2012, no pet.) (mem. op.). When, as here, an appellant challenges the legal and factual sufficiency of the evidence in a case where the proper standard is abuse of discretion, we engage in a two-pronged analysis: (1) whether the trial court had sufficient information upon which to exercise its discretion, and (2) whether the trial court erred in its application of discretion. In re J.J.G., — S.W.3d —, 01-16-00104-CV, 2017 WL 3492308, at *8 (Tex. App.—Houston [1st Dist.] Aug. 15, 2017, no pet.); Swaab v. Swaab, 282 S.W.3d 519, 525 (Tex. App.—Houston [14th Dist.] 2008, pet. dism'd w.o.j.).
Mother contends the Department's appointment as managing conservator was made under the authority of section 161.207 of the Texas Family Code. Our review of the trial court's decree shows the trial court found appointment of one or both parents would not be in Arthur's best interest "because the appointment would significantly impair the child's physical health or emotional development." A parent shall be named a child's managing conservator unless, as relevant here, the court finds that such appointment would significantly impair the child's physical health or emotional development. See Tex. Fam. Code Ann. § 153.131(a) (West 2014). Accordingly, the trial court made independent findings on conservatorship under section 153.131(a) that were not solely a consequence of termination. See In re J.A.J., 243 S.W.3d at 615. Mother does not challenge these independent findings in her conservatorship challenge.
Rather, Mother cites to section 161.208 of the Texas Family Code, and contends the Department did not diligently consider her as a placement for Arthur. Mother argues that the therapist's testimony supports appointment of Mother as a joint managing conservator because the therapist testified that Mother could handle one child, but not two. Section 161.208 provides:
If a parent of the child has not been personally served in a suit in which the Department of Family and Protective Services seeks termination, the court that terminates a parent-child relationship may not appoint the Department of Family and Protective Services as permanent managing conservator of the child unless the court determines that:
Tex. Fam. Code Ann. § 161.208 (West 2014).(1) the department has made a diligent effort to locate a missing parent who has not been personally served and a relative of that parent; and
(2) a relative located by the department has had a reasonable opportunity to request appointment as managing conservator of the child or the department has not been able to locate the missing parent or a relative of the missing parent.
Section 161.208 does not apply in this case, but only applies when the Department has not personally served a parent in a suit in which it seeks termination of the parent's parental rights. See id. In such a case, the Department may not be appointed managing conservator unless the Department makes a diligent effort to locate the missing parent and a relative of that parent and the relative located had a reasonable opportunity to request appointment as managing conservator or the Department has been unable to locate the missing parent or a relative of that parent. See id. Mother was not a missing parent in this case; she was present at trial and has not argued at any stage of these proceedings that she was not properly served. Accordingly, we conclude section 161.208 does not apply to this case.
We have concluded the evidence supporting Mother's termination was sufficient under section 161.001(b). Accordingly, section 161.207 controls. In re I.L.G., 531 S.W.3d at 357. Having found the evidence sufficient to support the best-interest finding, we conclude the trial court had sufficient information upon which to exercise its discretion, and did not abuse its discretion in appointing the Department as sole managing conservator of Arthur. See In re L.G.R., 498 S.W.3d at 207 (finding no abuse of discretion in conservatorship finding where the evidence was sufficient to support termination of parental rights). We overrule Mother's second issue.
III. CONCLUSION
Based on the evidence presented, the trial court could have reasonably formed a firm belief or conviction that termination of Mother's parental rights was in the children's best interest. See In re T.G.R.-M., 404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.). We further conclude the trial court did not abuse its discretion in appointing the Department managing conservator of Arthur.
We affirm the decree terminating Mother's parental rights and appointing the Department managing conservator of Arthur.
/s/ Marc W. Brown
Justice Panel consists of Justices Boyce, Jamison, and Brown.