Opinion
No. 04-15-00767-CV
05-25-2016
IN THE INTEREST OF N.S.
MEMORANDUM OPINION
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-02953
Honorable Richard Garcia, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Jason Pulliam, Justice AFFIRMED
Appellant Steven M. appeals the trial court's order terminating his parental rights to N.S. On appeal, Steven M. argues that the evidence was legally and factually insufficient to support the trial court's finding that termination was in the best interest of the child. We affirm.
BACKGROUND
On December 17, 2014, the Texas Department of Family and Protective Services filed a petition for protection of a child, for conservatorship, and for termination in a suit affecting the parent-child relationship. On November 13, 2015, the case proceeded to a bench trial. Appellant Steven M., who was incarcerated, participated by audio-conference.
At trial, there was evidence that a referral had been made to the Department based on allegations that ten-year-old N.S. and his mother were homeless and that his mother was abusing illegal drugs, specifically marijuana and methamphetamines. Pursuant to temporary orders, N.S. was placed with his maternal grandmother, and neither Appellant Steven M. nor Amber S., N.S.'s mother, was given visitation.
At trial, Adam Jacobs, who investigated this case for the Department, testified that after he received the referral, he made contact with Amber S. Amber S. denied taking any illegal substances; however, the drug test she took was positive for marijuana, amphetamines, and methamphetamines. Amber S. agreed to a safety plan where all contact between her and N.S. would be supervised by N.S.'s maternal grandmother. Jacobs testified that he also made contact with N.S., who reported several incidents of family violence between his mother, Amber S., and his maternal grandmother. N.S. said he witnessed his mother "punching" his maternal grandmother. N.S. also stated that he found "what appeared to be a methamphetamine pipe in [his] mother's purse." Jacobs clarified that N.S. called it a pipe, and from N.S.'s description of the pipe, Jacobs concluded that N.S.'s description was consistent with a methamphetamine pipe.
Jacobs testified that after speaking with N.S., he spoke with N.S.'s maternal grandmother who confirmed that Amber S. had "indeed assaulted her numerous times, including leaving a black eye on [the] maternal grandmother." Jacobs testified that when he visited with the maternal grandmother, he saw the black eye himself. Jacobs testified that N.S. was removed from his grandmother's home because although the maternal grandmother kept N.S. "protected," Amber S. "would come in and assault [the] grandmother, [and] break into the home numerous times." According to Jacobs, "we felt the child was in immediate danger."
Jacobs testified that during this time period, Appellant Steven M. "was incarcerated in Kendall County" "due to an assault charge in 2014." At the time of trial, Steven M. had been incarcerated for one year. Jacobs testified that Steven M. had a "pretty extensive criminal history, but the most concerning . . . is the aggravated assault." According to Jacobs, Steven M. had "been arrested for tampering with government records, larceny, aggravated assault with a deadly weapon, burglary, possession of marijuana, interfering with duties of a public servant, theft, possession of a controlled substance, and another assault."
Jacobs testified that according to N.S.'s maternal grandmother, Steven M. had not had contact with N.S. in the past six years. Jacobs testified that N.S. said "he had not seen his father in a while, but he couldn't recall an actual timeframe." Jacobs testified he knew Steven M. was located at the Kendall County Jail, and sent a letter to him there; however, "[t]here was no contact by [Steven M.] to me."
Jared Moore, a caseworker with the Department, testified that N.S. had been removed from his grandmother's home after Amber S. had broken into the home and after N.S.'s grandmother had allowed unauthorized contact between N.S. and his mother. Moore testified that N.S. was subsequently placed back with his grandmother. Moore testified that Steven M. had been incarcerated during the entire pendency of this case because he had assaulted a family member—his wife. Moore sent letters to Steven M. and visited him "a few times at the Kendall County Jail." According to Moore, Steven M. admitted to having engaging in illegal drug use with Amber S. Moore testified that Steven M. did not indicate the last time he had seen N.S. and did not ask about having contact with N.S. According to Moore, Steven M. said that he planned to live with his mother once he was released. Steven M. offered his mother as a relative placement; however, according to Moore, he spoke with Steven M.'s mother, and she said "she would not be able to take care of her grandchild." According to Moore, Steven M.'s mother "said that she was not willing - was not willing to do it."
Moore testified that terminating Steven M.'s parental rights was in the best interest of N.S. because N.S. has told Moore "that he does not want to live with his father," because Steven M. had been incarcerated over a year, and because of Steven M.'s criminal history. Moore testified that he had concerns about Steven M.'s behavior in the past and that Steven M. had not demonstrated that he had made any positive changes. According to Moore, Steven M. had not demonstrated any stability in his life. Moore testified that the plan for N.S. was for him to be adopted by his maternal grandmother. Moore testified that permanent placement with his maternal grandmother was in N.S.'s best interest. According to Moore, since the "initial issues" of Amber S. going to her mother's home, Amber S. had not made further attempts "to try to go into the home or try to remove" N.S. from the grandmother's home. Moore testified that N.S.'s needs were being met by his grandmother. Moore testified that N.S. told him he wishes to be adopted by his grandmother.
Steven M. testified by telephone. He stated that he had made the initial referral to the Department. According to Steven M., N.S.'s maternal grandmother had called him and told him that Amber S. and N.S. were homeless and Amber S. was using methamphetamine. Steven M. testified that after speaking with the grandmother, they both agreed to call the Department. Steven M. testified that his present incarceration related to his two-year-old daughter. He claimed he had "caught her mother shooting heroin" and the mother retaliated by claiming she had been assaulted by him. Steven M. stated that this case had been dismissed but that he was still incarcerated because he was "currently on parole for a drug case." He testified that he was incarcerated for having violated his parole by being arrested. Steven M. claimed he would be released soon and had a job at the Sonic in Boerne, Texas, where he earned $20 per hour. He stated that his "job [was] waiting" and that Sonic would rehire him upon his release. Steven M. testified that the last time he had seen N.S. was a year-and-a-half prior to trial:
The last time I saw my son, it would probably have been February of '14. And, again, the reason for that—and I - this is weird documentation, but I lived in Kerrville and I lived in Bandera; so, it would take me going into San Antonio to meet him, and I would go to the Bass Pro Shop and that's were Amber would meet me. Well, I would take pictures of the Bass Pro place at 7:00, 7:30, 8:00 o'clock.
She would never show up, didn't have a cell phone, didn't have any way to get ahold of her. And how long am I supposed to wait? So, at the time needed, I would be there and she wouldn't show up, so I would just take pictures of the store, so they were timestamped and dated, knowing that I had been there and she wouldn't show. I also have pictures from his ninth birthday, when we got a hotel room and had a party for him there. I also helped him catch his first fish. On 7/6/11, when I got out of prison, the first place I went was to his house with a birthday present, all of that.Steven M. admitted that his relationship with N.S. was "strained." He blamed the lack of relationship on Amber S. being "strung out on dope" and not getting N.S. "to where he needs to be or tell me where to be to see him." Steven M. testified that there was a visitation order in place, and his visitation with N.S. was supposed to be every other weekend, every other birthday, and every other Christmas. When asked on cross-examination why he had not taken Amber S. to court to gain custody or enforce his visitation, Steven M. stated that he had not had sufficient funds to hire a lawyer.
On cross-examination, Steven M. was reminded of his testimony that he had been released from prison on July 6, 2011, and was asked for what crime he had been serving time. Steven M. stated that in 2006, he had been convicted of possession of a controlled substance—methamphetamine. However, Steven M. claimed to have not taken methamphetamines for "well over a decade." When asked whether he objected to N.S. being adopted by his maternal grandmother, Steven M. said that he did and that he thought he could do a better job. When asked why he thought that, Steven M. replied because he was "the only parent" and N.S.'s grandmother was "not a parent." Steven M. was then asked how he could claim to be a parent when he had been incarcerated for half of N.S.'s life. Steven M. replied,
Because I have paid child support, because I'm there whenever I can be. I will accept him at any time, you know. I have been to all his parties since - that I have been invited to and known of. Any time I have known of his whereabouts, I'm there. He is welcome at my house any time. He always had birthday presents, Christmas presents. I contact my son any time I can. His first fish was caught with
me. We have pictures of it. We do things that men - what men do and that's what he needs, not a bunch of women running his life.
After hearing all the evidence, the trial court signed an order terminating Steven M.'s parental rights to N.S. In the order, the trial court found that Steven M.'s parental rights should be terminated under the following four grounds:
(1) Steven M. had knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the physical or emotional well-being of the child;The trial court also found that termination of Steven M.'s parental rights was in N.S.'s best interest. Steven M. appealed, arguing only that the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights was in the best interest of his child.
(2) Steven M. had engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child;
(3) Steven M. had constructively abandoned the child who had been in the permanent or temporary managing conservatorship of the Department for not less than six months and (a) the Department had made reasonable efforts to return the child to Steven M., (b) Steven M. had not regularly visited or maintained significant contact with the child, and (c) Steven M. had demonstrated an inability to provide the child with a safe environment; and
(4) Steven M. had failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the child who had 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 him under Chapter 262 for the abuse or neglect of the child.
DISCUSSION
Parental rights may be terminated only upon proof of clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(b)(1) of the Texas Family Code, and (2) termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2015). Here, the trial court found four grounds supporting termination of Steven M.'s parental rights under section 161.001(b)(1). On appeal, Steven M. does not contest these four findings by the trial court. His only argument on appeal is that the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights was in N.S.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2015).
When the legal sufficiency of the evidence is challenged, we look at all the evidence in the light most favorable to the trial court's 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). "To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. "If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient." Id. at 344-45.
When a parent challenges the factual sufficiency of the evidence on appeal, we look at all the evidence, including 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. In reviewing termination findings for factual sufficiency, we give due deference to the factfinder's findings and do not supplant its judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
Under Texas law, 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). However, there is also a presumption that when the court considers factors related to the best interest of the child, "the 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) (West Supp. 2015). And, in determining whether the child's parents are willing and able to provide the child with a safe environment, the court should consider the following: the child's age, and physical and mental vulnerabilities; 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; the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; and whether the child's family demonstrates adequate parenting skills, including providing the child with (1) minimally adequate health and nutritional care, (2) a safe physical home environment, (3) care, nurturance, and appropriate discipline consistent with the child's physical and psychological development; (4) guidance and supervision consistent with the child's safety; (5) protection from repeated exposure to violence even though the violence may not be directed at the child; and (6) an understanding of the child's needs and capabilities. Id. § 263.307(b). In addition, courts may consider other nonexclusive factors in reviewing the sufficiency of the evidence to support the best interest finding, including (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 which may indicate the existing parent-child relationship is not appropriate, and (9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list is not exhaustive. Id.
Appellant Steven M. was incarcerated at the time of trial and participated by audio-conference. In support of his argument that the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights is in N.S.'s best interest, he points to his own testimony at trial that after he was released from incarceration, he would have employment and a place to reside. He also emphasizes his testimony that he has been free from illegal substances for the last ten years and that he has "made his best efforts to maintain a relationship with his child."
The evidence presented at trial, however, is legally and factually sufficient to show that termination of Steven M.'s parental rights is in N.S.'s best interest. There was evidence that N.S. had not bonded with Steven M. Steven M., himself, admitted their relationship was "strained", he had been incarcerated for half of N.S.'s life, and when he had not been incarcerated, he had not seen N.S. very often. Steven M. consistently blamed his lack of relationship with his son on N.S.'s mother and claimed no responsibility for the status of the relationship. In contrast, N.S. stated his desire to live with and be adopted by his maternal grandmother, with whom he was bonded. It was his grandmother who had been meeting his needs and taking care of him. While Steven M. claimed he could meet N.S.'s physical and emotional needs, his testimony showed that he thought so because he was "the only parent" and a man. His testimony reflected that he did not know what N.S. needed or how he would be able to meet those needs. And, while Steven M. claimed Sonic would rehire him upon his release and he would earn $20 per hour, there was no other evidence to substantiate his employment. While Steven M. claimed to have a stable home for N.S., there was no other evidence to substantiate his claim. Further, Steven M.'s criminal history and periods of incarceration do not support his claim that he could provide a stable home. Thus, whether we look at all the evidence in light most favorable to the trial court's finding, or whether we look at all the evidence, including disputed or conflicting evidence, we conclude the trial court's best interest finding is supported by sufficient evidence. See In re J.O.A., 283 S.W.3d at 344-45 (stating legal and factual sufficiency standards). We therefore affirm the trial court's order terminating Steven M.'s parental rights to N.S.
Karen Angelini, Justice