Opinion
No. 04-15-00504-CV
02-03-2016
IN THE INTEREST OF C.S.D. and J.C.D.
MEMORANDUM OPINION
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-01571
Honorable Charles E. Montemayor, Associate Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Nicole N. appeals the trial court's order terminating her parental rights to her children C.S.D. and J.C.D. On appeal, Nicole N. 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 children. We affirm.
BACKGROUND
On July 2, 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. The suit requested termination of Nicole N.'s parental rights to her two sons C.S.D. and J.C.D. The case proceeded to a bench trial on July 24, 2015. At the time of the bench trial, Nicole N. was incarcerated.
The Department's petition also sought termination of the father's parental rights. The father's parental rights were subsequently terminated, and the father did not appeal. --------
Miguelina Wooten, the caseworker, testified that at the time of their removal from their parents' care, C.S.D. was four years old and J.C.D. was two years old. According to Wooten, they had been placed with Lisa R., their maternal grandmother. Wooten testified that Lisa R. was meeting all of the children's needs and that C.S.D., who was old enough to communicate, expressed that he was happy living with his grandmother. Lisa R. had previously adopted two older siblings of C.S.D. and J.C.D, and she also wished to adopt C.S.D. and J.C.D.
Wooten testified that C.S.D. and J.C.D. were brought into the Department's care because of child endangerment, neglect or abuse and physical neglect. Wooten stated that drugs, including prescribed medication, methamphetamine, and marijuana, were an issue in the case. According to Wooten, domestic violence was also a potential concern. The police had been called to the family's home twelve times in the three months before the children's removal. Further, the family had a previous history with the Department. Wooten characterized drug use being an issue with the parents since 2007 when Nicole N. relinquished her rights to her two older children.
With respect to the instant case, Wooten testified that on July 1, 2014, the police responded to a call at a motel. Nicole N., the children's father, and the children were being evicted from the motel. Nicole N. refused to leave. Wooten testified that the motel room that the family had been living in was described as dirty. The police discovered marijuana and drug paraphernalia in the family's vehicle. Nicole N. was arrested and charged with two counts of child endangerment. She was also charged with possession of marijuana. The children were removed from their parents' care. Nicole N. was subsequently placed on probation. Her probation was then revoked, which was the reason she was incarcerated at the time of trial.
According to Wooten, Nicole N. refused to sign the court-ordered family service plan and did not complete the items listed on the plan. Although Nicole N. went to a psychological appointment, she refused to agree to release the information to the Department and became confrontational with the doctor. She also did "intake on the domestic violence unit and she went to one session," but never completed it. Wooten testified that Nicole N. had not shown she had rectified the problems that had brought her children into the Department's care. She had not given Wooten any certificates of completion for any of the services. Wooten believed termination of Nicole N.'s parental rights was in the children's best interest because they would not be safe if returned to her.
Nicole N. testified by telephone. She agreed that her mother was meeting the needs of her children and providing them with a safe environment. Nicole N. believed that she would be released in two to three months. She admitted that she had had one positive drug test in October 2014 and another while on probation. She further admitted to not submitting to hair follicle testing, giving the excuse that at the time she did not have transportation. She also testified that she did not believe her previous history with the Department was relevant to this case. She testified that she had completed an assessment through drug court but was denied services because of her pending charges. Nicole N. claimed to have completed many other services while incarcerated, but could not explain what happened to the certificates of completion. She testified that she sent them to her mother, Lisa R.
Lisa R. testified that her daughter's testimony "may be possible, but the problem is that when you're incarcerated they check everything that goes in and out." Lisa R. hypothesized that Nicole N. may have sent them but she did not receive them.
After hearing all the evidence, the trial court signed an order terminating Nicole N.'s parental rights to her children. In the order, the trial court found that Nicole N.'s parental rights should be terminated under the following four grounds:
(1) Nicole N. had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endanger the physical or emotional well-being of the children;The trial court also found that termination of Nicole N.'s parental rights was in the children's best interest. Nicole N. appealed, arguing only that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of her children.
(2) Nicole N. had engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children;
(3) Nicole N. had constructively abandoned the children 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 children to Nicole N., (b) Nicole N. had not regularly visited or maintained significant contact with the children, and (c) Nicole N. had demonstrated an inability to provide her children with a safe environment; and
(4) Nicole N. had failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the children's removal from her under Chapter 262 for the abuse or neglect of the children.
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 Nicole N.'s parental rights under section 161.001(b)(1). On appeal, Nicole N. does not contest these four findings by the trial court. Her only argument on appeal is that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights was in her children'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.
Nicole N. first argues that many of these factors set out above "were ignored" by the trial court. However, the list of factors set out above is not exhaustive, and evidence is not required on all of the factors to support termination of a parent's rights. Id.; In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
Nicole N. also argues that she should have been granted more time in this process. She emphasizes that her children are currently placed with her mother, who is meeting the needs of her children and is willing to keep the children until she is released from incarceration. Nicole N. points to her testimony that she completed services while being incarcerated. Nicole N. blames the Department for failing to set up services for her and for not offering her assistance.
In response, the Department points to evidence supporting Nicole N.'s pattern of behavior. Nicole N.'s parental rights to two older children had been previously terminated due to her drug issues. At the time of the children's removal and Nicole N.'s arrest, illegal drugs were present. Nicole N. had not been providing her children with a safe home environment; they had been living in a dirty motel room in the presence of illegal drugs. Although Nicole N. denied a drug abuse problem during her testimony, she admitted to having failed two drug tests during the pendency of this case. She also refused to submit to a hair follicle test. Her probation was then revoked and she was incarcerated again. This evidence of Nicole N.'s pattern of drug abuse supports the finding that she is unable to provide a safe home environment and she is unable to meet the needs of her very young children.
With regard to services, Nicole N. blamed the Department for failing to provide her with services. She also testified that she had transportation problems and blamed the Department for not providing her services closer to where she was staying. However, there was evidence that Nicole N. refused to sign the service plan; she was confrontational with the doctor who was to take a psychological exam and did not complete the process; and although she completed the intake portion of the domestic violence classes, she did not follow them to completion. Nicole N. testified that she had completed many services while incarcerated and claimed to have given the certificates to her mother. Her mother testified she never received them and said they could been lost in the mail. In contrast to Nicole N.'s testimony, the Department's caseworker testified that services were made available to Nicole N. but that Nicole N. failed to follow through with the services. Thus, there is evidence that Nicole N. has not been willing to seek out, accept, and complete counseling services, nor has she cooperated with and facilitated the Department's supervision or been willing to effect positive environmental and personal changes within a reasonable period of time.
Further, it is undisputed that Nicole N.'s mother is providing the children with a safe and secure home environment and is providing for their emotional and physical needs. Additionally, C.S.D., the only child old enough to express his desires, told the caseworker that he was happy living with his grandmother. We hold that the evidence is legally and factually sufficient to support the finding that termination of Nicole N.'s parental rights is in the children's best interest.
We therefore affirm the order of the trial court terminating Nicole N.'s parental rights.
Karen Angelini, Justice