Opinion
No. 07-18-00099-CV
07-20-2018
IN THE INTEREST OF A.M.C. AND B.A.M., CHILDREN
On Appeal from the County Court at Law Moore County, Texas
Trial Court No. CL 18-17, Honorable Delwin T. McGee, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
"Ella" appeals the trial court's order terminating her parental rights to her children, A.M.C. and B.A.M. Ella asserts the evidence is neither legally nor factually sufficient to support the trial court's finding that termination of her parental rights is in the best interest of the children. We will affirm the trial court's order.
To protect the children's privacy, we will refer to the appellant mother as "Ella" and the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b).
Background
In January of 2017, the Department of Family and Protective Services became involved with Ella when B.A.M., three years of age, was hospitalized after inhaling methamphetamine smoke. Ella eventually admitted to a nurse that she had smoked two bowls of methamphetamine in the bathroom at her home on the morning that B.A.M. was hospitalized. Ella explained that B.A.M. was outside the bathroom door when she was exposed to the methamphetamine smoke. B.A.M.'s four year old brother, A.M.C., was also in the home at the time. Ella, B.A.M., and A.M.C. tested positive for methamphetamine. Ella admitted to using methamphetamine on a weekly basis to help her deal with the stress of the children.
The Department removed B.A.M. and A.M.C. from Ella's home due to concerns of Ella's drug use and the unsanitary condition of the home. The Department obtained temporary managing conservatorship of the children on January 25, 2017.
The Department developed a family service plan for Ella and "Roy," the father of B.A.M. The plan required that Ella maintain safe, stable housing; maintain stable, verified employment; follow therapy and assessment recommendations; and report address changes. The plan also prohibited the use of drugs.
Roy was incarcerated on a drug possession charge when the children were removed. The trial court ultimately terminated the parental rights of Roy and A.M.C.'s unknown father. They did not appeal.
After Ella completed six counseling sessions, a parenting course, and six negative drug screens, the Department facilitated a monitored return of A.M.C. to Ella's home in August of 2017. The plan was to return B.A.M. to Ella's home thirty days after A.M.C. A permanent injunction was issued against Roy and he was prohibited from having contact with Ella and the children because of past incidents of domestic violence. On September 11, 2017, after an unannounced visit by the caseworker, Caitlin White, the Department sought to remove the children from the home again. White discovered that A.M.C. had a giant mark on his cheek, "kind of a knotted bruise with two lines across it." No one could provide a plausible explanation for A.M.C.'s injury. White also determined that Ella had not given A.M.C. his A.D.H.D. medication. A.M.C. told White that Ella's boyfriend, "Stan" had put handcuffs on Ella and that she did not like it because it would cause Stan and Ella to hit each other. A.M.C. also said that he had been restrained to the balcony with handcuffs, and he "hated when [Stan] took the handcuffs out."
On September 20, 2017, the court authorized the children to be removed once again. Ella was ordered to continue individual counseling and attend a domestic violence support group. Further, the court ordered that Ella shall have no contact with Stan or Roy until further order of the court.
Ella's counselor, Karla Stovall, saw Ella three times. Ella did not want to discuss her history. Specifically, Ella did not want to talk about her rights being terminated to four other children. Ella told Stovall that she was pregnant with Stan's child and that he also has an open case with the Department. Stan had recently tested positive for methamphetamine and marijuana. Ella was assisting Stan in getting his child returned to his care. Stovall discharged Ella from counseling because of Ella's "unwillingness to process any of her past issues," and her lack of progress in addressing her current situation.
After the second removal, the children were placed with a maternal aunt and uncle, Mr. and Mrs. Ibarra. This was the first time since the initial removal that the children were placed together. Soon, A.M.C. began to display aggression toward B.A.M. He began to hit, kick, bite and throw objects. He refused to eat and refused to leave daycare to go to school. He began urinating on himself. Although A.M.C. received counseling for his behavior, he was removed from the home after a couple of months and placed in a foster home in Lubbock. A.M.C. still struggles with tantrums, but they occur less frequently.
On November 4, 2017, Officer Eric Holt of the Dumas Police Department investigated an assault between Ella and her sister. Ella's sister intervened in an argument between Ella and Stan, and Ella punched her sister in the mouth. Ella's sister received a busted lip and stitches in her mouth. Officer Holt testified that charges were pending against Ella for assault-family violence. The charges were upgraded to a felony because Ella had a prior conviction.
The final hearing on the petition to terminate commenced on March 6, 2018, and reconvened the following afternoon. Ella was present at trial, but she did not testify. Ella lives with her mother, her sister, and her niece in a two-bedroom apartment. The cleanliness of the apartment is a concern. The caseworker testified that the residence "smells strongly of chemicals and smells of feces throughout the house." As recently as February 22, 2018, there were "multiple piles of animal feces on the floor," and urine spots.
A.M.C.'s counselor, Jennifer Laurich, testified that A.M.C. saw Stan bite Ella and he saw Ella and Stan hitting each other. A.M.C. also told her that Stan hit him and left a bruise. A.M.C. is afraid of Stan and he is worried about his mother if she stays with Stan.
Although the court ordered Ella not to have contact with Stan or Roy, Ella maintains contact with Stan and she is currently pregnant with his child. Ella had phone contact with Roy and he was paroled to her address after his release from prison a few days before the trial.
The trial court terminated Ella's parental rights to A.M.C. and B.A.M. on the grounds of endangering conditions, endangerment, prior termination of parental rights of other children, and failure to comply with a court order that established actions necessary to retain custody of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (M), (O) (West Supp. 2017). The court also found that clear and convincing evidence demonstrated that termination was in the best interest of A.M.C. and B.A.M. See § 161.001(b)(2).
Further references to provisions of the Texas Family Code will be by reference to "section ___" or "§ ___."
Applicable Law
A parent's rights to the "companionship, care, custody, and management" of his or her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, "the rights of natural parents are not absolute" and "[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may forfeit his or her parental rights by his or her acts or omissions, the primary focus of a termination suit is protection of the child's best interests. See id.
In a case to terminate parental rights by the Department under section 161.001 of the Family Code, the Department must establish, by clear and convincing evidence, that (1) the parent committed one or more of the enumerated acts or omissions justifying termination, and (2) termination is in the best interest of the child. § 161.001(b). 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." § 101.007 (West 2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both elements must be established, and termination may not be based solely on the best interest of the children as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied). "Only one predicate finding under section 161.001[(b)](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d at 362. We will affirm the termination order if the evidence is both legally and factually sufficient to support any alleged statutory ground the trial court relied upon in terminating the parental rights if the evidence also establishes that termination is in the children's best interest. In re K.C.B., 280 S.W.3d at 894-95.
Standards of Review
When reviewing the legal sufficiency of the evidence in a termination case, the appellate court should 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.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder's conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been not credible, but we do not disregard undisputed facts. Id. Even evidence that does more than raise surmise or suspicion is not sufficient unless that evidence is capable of producing a firm belief or conviction that the allegation is true. In re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could have formed a firm belief or conviction that the matter that must be proven was true, then the evidence is legally insufficient, and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. We must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. We must also consider whether disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. Id. 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.
Analysis - Best Interest of the Children
Ella does not contest the statutory basis for termination under section 161.001(b)(1). She concedes that the evidence was legally and factually sufficient to terminate her parental rights under at least one of subsections (D), (E), (M), and (O). Ella challenges the factual and legal sufficiency of the evidence supporting the best interest finding made under section 161.001(b)(2).
A determination of best interest necessitates a focus on the child, not the parent. See In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts examine the entire record to decide what is in the best interest of the child. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child's best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
In assessing whether termination is in a child's best interest, the courts are guided by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include: (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (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 acts or omissions of the parent that may indicate that the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the parent. Id. "[T]he State need not prove all of the factors as a condition precedent to parental termination, 'particularly if the evidence were undisputed that the parental relationship endangered the safety of the child.'" In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). We must also bear in mind that a child's need for permanence through the establishment of a stable, permanent home has been recognized as the paramount consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).
Several Holley factors support the trial court's determination that termination of Ella's parental rights is in the children's best interest.
The Desires of the Children
A.M.C. and B.A.M. were ages five and four at the time of trial. Some courts have held that the young age of a child may render this factor neutral. In re D.W., 445 S.W.3d 913, 926 (Tex. App.—Dallas 2014, pet denied); In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2012, no pet.). A.M.C. told his counselor that he missed his mother and wished he was with her. A.M.C. told the caseworker that he is afraid of Stan and he is concerned about his mother's safety with Stan. There was no specific testimony referencing B.A.M.'s desires. Ella regularly visited the children and both children are bonded with Ella. This factor weighs neither for nor against termination.
The Emotional and Physical Needs of and Danger to the Children
The next two factors are the children's emotional and physical needs now and in the future, and the emotional and physical danger to the children now and in the future. The need for permanence is a paramount consideration for a child's present and future physical and emotional needs. Edwards v. Tex. Dep't of Protective & Regulatory Servs., 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ), disapproved on other grounds by, In re J.F.C., 96 S.W.3d at 267. A factfinder may infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent. In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied), disapproved on other grounds by, In re J.F.C., 96 S.W.3d at 267. A trial court is entitled to consider a parent's history of drug use and irresponsible choices. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
Evidence of the parents' history of domestic violence supports the trial court's best interest finding. See In re J.I.T.P., 99 S.W.3d 841, 846 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (domestic violence supports finding that termination is in child's best interest even when child is not a victim of violence). Evidence of past misconduct or neglect is permissible as an inference that a parent's future conduct may be measured by their past conduct. In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.) (parent's future conduct may be measured by his or her past conduct in determining whether it is in child's best interest to terminate parental rights).
The Department became involved after Ella, A.M.C., and B.A.M. tested positive for methamphetamine. Ella admitted that she smoked two bowls of methamphetamine the morning that B.A.M. was admitted to the hospital for exposure to the smoke. Both of the children were present in the home when this occurred. Ella admitted to using methamphetamine weekly to help her deal with the stress of her children. Ella's substance abuse also played a major role in her previous termination cases.
The prevalence of violence in Ella's relationships is also concerning. Ella admitted to the caseworker that she and Roy have a history of violence and that Roy pushed her while she was pregnant with B.A.M. Roy claims that Ella assaulted him in 2014 but the charges were dropped. Even though a court order in this case prohibited contact between Roy and Ella, Roy was paroled to Ella's residence after he was released from prison a few days before the trial. After the Department's monitored return, Ella allowed Stan in her home where A.M.C. was exposed to hitting, biting, and handcuffs. A.M.C. also suffered an injury to his cheek. Ella's sister intervened in an argument between Ella and Stan, and Ella punched her sister in the mouth with enough force to bust her lip and require her to have stitches. Felony assault-family violence charges are pending against Ella.
A parent's history and admissions are relevant to the best interest determination. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.). A trial court is entitled to consider a parent's history of drug use and irresponsible choices. See In re J.O.A., 283 S.W.3d at 346. A child's exposure to domestic violence in the home is relevant when considering best interest. In re. B.R., No. 02-12-00137-CV, 2013 Tex. App. LEXIS 41, at *36 (Tex. App.—Fort Worth Jan. 4, 2013, pet. denied) (mem. op.). "Repeated exposure to violence, even if the violence is not directed at the children, undermines the safety of the home environment" and supports a finding that termination of parental rights is in the child's best interest. In re A.M.Y., No. 04-15-00352-CV, 2015 Tex. App. LEXIS 10806, at *15 (Tex. App.—San Antonio Oct. 21, 2015, no pet.) (mem. op.).
The trial court could have concluded that Ella is unable to meet the physical or emotional needs of the children and is unable to protect the children from physical or emotional danger. Ella's failure to attend the domestic violence support group and her willingness to pursue a relationship with Stan given their history of drug use and domestic violence suggests that similar conduct will occur in the future. In re D.L.N., 958 S.W.2d at 941. The factfinder may infer that a parent's past conduct of endangering the well-being of the children may recur in the future if the children are returned. Id. These two factors weigh heavily in favor of the trial court's best interest determination.
Parenting Ability and Programs Available to Assist Party Seeking Custody
The fourth and fifth factors will be discussed together. In reviewing the parenting ability of the parent, a factfinder can consider the parent's past neglect or past inability to meet the physical and emotional needs of the children. In re G.N., 510 S.W.3d 134, 139 (Tex. App.—El Paso 2016, no pet.). A parent's exposure of a child to drug use and violence may be properly considered in determining whether a parent has demonstrated appropriate parenting abilities. In re H.D., No. 01-12-00007-CV, 2013 Tex. App. LEXIS 5699, at *42 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (mem. op). The factfinder can infer from a parent's failure to take the initiative to utilize the available programs offered by the Department that the parent "did not have the ability to motivate herself to seek out available resources needed now or in the future." In re J.M., No. 01-14-00826-CV, 2015 Tex. App. LEXIS 2130, at *21 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.) (citing In re W.E.C., 110 S.W.3d 231, 245 (Tex. App.—Fort Worth 2003, no pet.)).
Although Ella completed some of the court-ordered services, she failed to complete individual counseling or to attend the domestic violence support group. Ella's counselor testified that Ella was unwilling to process her past issues, and Ella did not appear to be motivated to continue counseling. Ella cited a "lack of time" as preventing her from implementing coping skills she learned in therapy to alleviate her anxiety issues. Ella's failure to complete these court-ordered services could have led the trial court to infer that Ella did not have the ability to motivate herself to seek out available resources now or in the future. See id. Further, the caseworker testified that B.A.M. is "hyper" during her visits with Ella, and that Ella has difficulty redirecting B.A.M. The trial court was entitled to find that this evidence weighed in favor of the best interest finding.
Plans for the Children and Stability of the Home or Placement
We will consider the sixth and seventh factors together. The sixth factor examines the plans for the child by those individuals or the agency seeking custody. The seventh factor is the stability of the home or proposed placement. Stability and permanence are paramount in the upbringing of children. In re J.D., 436 S.W.3d 105, 120 (Tex. App.— Houston [14th Dist.] 2014, no pet.). The factfinder may compare the parents' and the Department's plans for the child and determine whether the plans and expectations of each party are realistic or weak and ill-defined. Id. at 119-20.
Ella did not testify at the termination hearing or offer any specifics of her plans for the children. The caseworker testified that B.A.M. was very content and well-adjusted in her placement with the Ibarras. The Ibarras are interested in adopting B.A.M. if parental rights are terminated.
A.M.C. is placed with a foster home in Lubbock. This is his sixth placement. He had been placed in this home previously. While A.M.C. has A.D.H.D. and behavioral issues, he appears to do well in the structured environment. The Department would consider placing A.M.C. back in the Ibarra home if his behavior stabilizes. The caseworker indicated that other family members may be interested as a placement for A.M.C. if the parents are not involved. This evidence supports the trial court finding that termination was in the best interest of the children.
Acts and Omissions of the Parent
The eighth factor is the parent's acts or omissions that may indicate that the existing parent-child relationship is not a proper one. The evidence established that Ella engaged in conduct which endangered the children's physical and emotional well-being. Ella's history of methamphetamine use and violent relationships is wholly inconsistent with a proper parent-child relationship. She chooses to pursue a relationship with a man who uses illegal drugs and who has perpetrated violence on her and A.M.C. In considering all the evidence, the trial court could have found that the existing parent-child relationship is not a proper one.
From a review of these Holley factors, we conclude that the evidence is both legally and factually sufficient to establish a firm conviction in the mind of the trial court that termination of Ella's parental rights is in the best interest of A.M.C. and B.A.M.
CONCLUSION
The judgment of the trial court terminating Ella's parental rights is affirmed.
Judy C. Parker
Justice