Opinion
NO. 14-16-00280-CV
09-08-2016
IN THE INTEREST OF S.A.Y.W., A.N.W., J.E.W., X.E.B., H.E.B. JR., H.Z.S., AND B.A.B., CHILDREN
On Appeal from the 313th District Court Harris County, Texas
Trial Court Cause No. 2015-02145J
MEMORANDUM OPINION
The trial court terminated the parental rights of S.L.S. ("Mother") and H.E.B. ("Father") with respect to seven children and appointed appellee Texas Department of Family and Protective Services ("the Department") to be the children's managing conservator. Mother and Father each challenge the sufficiency of the evidence to support the judgment. We affirm.
BACKGROUND
Mother has seven children: Sarah, Andrew, Jacob, Xander, Henry, Hunter, and Ben. Sarah, the eldest, was 16 at the time of trial. The youngest, Ben, was almost three. Father is the father of all the children except Sarah and Andrew. Sarah's and Andrew's father is not a party on appeal.
We use fictitious names for the children discussed in this opinion. See Tex. R. App. P. 9.8(b)(2).
The pretrial removal affidavit was not offered into evidence at trial, but it is in the clerk's record. The trial court stated it took judicial notice of the record in this case, which is permissible. In re K.F., 402 S.W.3d 497, 504-05 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). Further, even where the affidavit is not in evidence, we may review it to consider whether the removal was for abuse or neglect, as required for termination under Tex. Fam. Code Ann. § 161.001(b)(1)(O), one of the predicate grounds for termination of both Mother's and Father's parental rights. In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013) ("This affidavit, even if not evidence for all purposes, shows what the trial court relied on in determining whether removal was justified.").
In April 2014, the Department received a report alleging neglectful supervision of Xander, then age five, who had arrived at school with bruises requiring medical attention. Xander said his older brother, Andrew, beat him up while Mother was sleeping and again on the school bus. The case was referred to the Family Based Safety Services ("FBSS") section of the Department in Matagorda County, where the family resided.
In February 2015, Mother and the children moved to Houston, reportedly due to ongoing domestic violence between Mother and Father. The case was transferred to FBSS in Harris County. Mother was tested for drugs twice over the next month. She was negative each time.
While in Houston, Mother and the children stayed at the Star of Hope homeless shelter. Mother was written up several times by Star of Hope staff for "being neglectful" and "not properly watching" her youngest children.
FBSS caseworker Ashley Dubra-Gales made an unannounced visit on March 31, 2015. She found Mother and the five younger children walking to McDonald's. Dubra-Gales said the children were unclean and unkempt, and their behavior was erratic and uncontrollable. None of the children except Xander had seen a doctor or dentist in more than six months. Mother said she was having issues getting Medicaid for the children.
Late in the afternoon of April 3, 2015, Dubra-Gales received a text message from Mother that said "call me now." Dubra-Gales called Mother. Mother told her that she loves all her children dearly but the situation was overwhelming her and her children would be best served in foster care. Mother also admitted she was not taking medication for her bipolar disorder. Dubra-Gales said she would need to speak to her supervisor concerning the grounds for removal.
Dubra-Gales received another text message from Mother in the early morning hours of April 6, 2015. The message said "call me ASAP." Dubra-Gales called Mother, and Mother again emphasized her love for her children but said it would be best if they were in foster care.
Mother said she had no living relatives. Father was not considered to be an appropriate placement for the children due to his alleged domestic violence. As a result, the Department removed the children on April 6, 2015, and filed its petition for termination the next day.
B. Court-ordered family service plans
Early in the case, the trial court signed a temporary order directing the parents to comply with the requirements of the Department's family service plans. At a status hearing several weeks later, the trial court approved the Department's family service plans and incorporated them into the court's orders.
Mother's service plan required her to, among other things, participate in a substance abuse assessment, psychosocial assessment, and psychiatric assessment and follow all recommendations resulting from those assessments. She also had to complete a 6-8 week parenting class and provide the certificate of completion to her caseworker. Further, she was obligated to obtain and maintain a job and a safe home and provide documentation of both. Her plan stated she would need to comply with additional tasks that might be added.
The Department did not have an address for Father when suit was filed, so it conducted a search for him. In the meantime, he was represented by an attorney ad litem whom the trial court appointed the day suit was filed. Father was served with process in Louisiana in August or September of 2015.
Father testified he received the "paperwork" for this case in August 2015. The Department's First Amended Petition, filed September 15, 2015, provides an address for Father for the first time and says he will be served.
The service plan for Father required him to submit to DNA testing to establish paternity. Like Mother, he was also required to get a job and maintain a safe home and provide documentation of both. The written service plans in the record do not list further requirements, but at trial Father acknowledged his service plan obligated him to take a parenting class, a "drug class," and a psychological evaluation.
C. Trial
Trial was held on March 10, 2016. The Department presented testimony from Mother, Father, Department caseworker Fleater Warren, and Court Appointed Special Advocates (CASA) volunteer Brian Long. Mother did not call witnesses or submit evidence. Father presented testimony from two of his sisters but did not submit other evidence. After all parties rested, the trial judge said he had spoken with Sarah and was planning to speak to some more of the older children. The record does not reflect if those conversations took place.
The trial court's judgment states that Mother engaged in the conduct described in subsections D and E (endangerment), K (voluntary relinquishment of parental rights), N (constructive abandonment), and O (failure to comply with court order) of section 161.001(b)(1) of the Family Code.See Tex. Fam. Code Ann. § 161.001(b)(1). The judgment states that Father engaged in the conduct described in subsections N and O of section 161.001(b)(1). Finally, the judgment recites that termination of both parents' parental rights was in the children's best interest. Id. § 161.001(b)(2).
The numbering of section 161.001 changed effective April 2, 2015. Section 161.001(1) is now section 161.001(b)(1). Although the trial court's judgment cites the previous version, Mother's case began after April 2, 2015 and is therefore governed by the current version. We refer to the 2015 version in this opinion.
On appeal, Mother and Father both challenge the sufficiency of the evidence to support the trial court's findings. Neither challenges the appointment of the Department as managing conservator. The Department concedes the evidence is legally insufficient to support termination of Mother's rights under subsections K or N but asserts all other findings are supported by sufficient evidence.
ANALYSIS
I. Burden of Proof and Standards of Review
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); In re S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Although parental rights are of constitutional magnitude, they are not absolute. The child's emotional and physical interests must not be sacrificed merely to preserve the parent's rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to the clear and convincing evidence standard. 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; accord J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review. S.R., 452 S.W.3d at 358.
Parental rights can be terminated upon proof by clear and convincing evidence that (1) the parent has committed an act described in section 161.001(b)(1) of the Texas Family Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b). Only one predicate finding under section 161.001(b)(1) is necessary to support a decree 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 355, 362 (Tex. 2003).
In reviewing the legal sufficiency of the evidence in a termination case, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. We assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence a reasonable fact finder could have disbelieved. J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266.
In reviewing termination findings for factual sufficiency of the evidence, we consider and weigh all the evidence, including disputed or conflicting evidence. See J.O.A., 283 S.W.3d at 345. "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." J.F.C., 96 S.W.3d at 266. 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) (per curiam). The fact finder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109. We are not to "second-guess the trial court's resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible." In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
II. Predicate Ground for Termination: Failure to Comply with Court-Ordered Service Plan
Subsection O requires clear and convincing evidence that the parent:
[1] 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 [2] who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months [3] as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.Tex. Fam. Code Ann. § 161.001(b)(1)(O); In re S.M.R., 434 S.W.3d 576, 582 (Tex. 2014).
On appeal, neither Mother nor Father disputes that: (1) the service plan was a court order that specifically established the actions necessary for them to get their children back, (2) the children had been in the Department's conservatorship for at least nine months, or (3) they were removed due to abuse or neglect. Those unchallenged fact findings are 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); In re C.N.S., No. 14-14-00301-CV, 2014 WL 3887722, *7 (Tex. App.—Houston [14th Dist.] Aug. 7, 2014) (mem. op.) (same).
The record supports each of the unchallenged findings. First, the trial court approved and incorporated the requirements of the family service plans as court orders, then took judicial notice of those orders at trial. See In re K.F., 402 S.W.3d 497, 504-05 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). Second, the children had been in the Department's managing conservatorship for eleven months at the time of trial. Third, in early orders, the trial court found that the children had been removed under chapter 262 of the Family Code, namely section 262.104, because there existed an immediate danger to their health and safety. See Tex. Fam. Code Ann. § 262.104(a)(1).
Both parents admit they did not complete the requirements under their service plans. For example, at the time of trial, Mother did not have a job or a place to live. Father had begun, but not completed, parenting classes, a drug program, and a psychosocial evaluation. He testified that at the time of trial, he had a three-bedroom home in Louisiana and cut grass for a living. He said he could take care of himself and the children. However, he did not provide documentation to the Department of his home or job.
Mother implies her failure to complete her services was due in part to her being held against her will for two and a half months as part of a human trafficking ring.
Both parents assert, though, that termination should not be predicated on subsection O because they substantially complied with the service plan's provisions. Specifically, Mother says she visited her children and completed the parenting class and psychosocial assessment but lost the documentation. Father says starting his services, as well as having stable housing and being able to provide for his children financially, shows he is serious about caring for his children. Substantial compliance is not sufficient to avoid a termination finding under subsection O. See In re M.C.G, 329 S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).
Considered in the light most favorable to the trial court's finding, the evidence is legally sufficient to support the trial court's determination that termination of Mother's and Father's parental rights was justified under section 161.001(b)(1)(O) of the Family Code. J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266. Further, in view of the entire record, we conclude the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that termination was warranted under section 161.001(b)(1)(O). Accordingly, we conclude the evidence is factually sufficient to support the section 161.001(b)(1)(O) finding.
In light of our conclusion regarding the trial court's finding on subsection O, we need not make a determination as to its findings on the other predicate grounds. See A.V., 113 S.W.3d at 362.We overrule Mother's issues 1, 2, and 5, and Father's issues 1 and 2.
We sustain Mother's issues 3 and 4, challenging the sufficiency of the evidence to support the trial court's findings regarding subsections K and N, because the Department concedes the evidence is insufficient. Our sustaining these issues does not change our holding because sufficient evidence supports at least one predicate ground for termination. See A.V., 113 S.W.3d at 362. --------
III. Best Interest
In Mother's sixth issue and Father's third issue, they assert the evidence is legally and factually insufficient to support the trial court's finding that termination of their parental rights is in the children's best interest. We review the entire record in deciding a challenge to the court's best-interest finding. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013).
Termination must be in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(2). There is a strong presumption that the best interest of a child is served by keeping the child with the child's parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). Prompt, permanent placement of the child in a safe environment is also presumed to be in the child's best interest. Tex. Fam. Code Ann. § 263.307(a).
Courts may consider the following non-exclusive factors in reviewing the sufficiency of the evidence to support the best-interest finding: the desires of the child; the physical and emotional needs of the child now and in the future; the emotional and physical danger to the child now and in the future; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the child; the plans for the child by the individuals or agency seeking custody; the stability of the home or proposed placement; 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. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). As noted, this list of factors is not exhaustive, and evidence is not required on all the factors to support a finding that termination is in the child's best interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
In addition, the Family Code sets out thirteen factors to be considered in evaluating a parent's willingness and ability to provide the child with a safe environment. See Tex. Fam. Code Ann. § 263.307(b). Those factors are: (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 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 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. Id.; R.R., 209 S.W.3d at 116.
A. The children and their foster parents
The seven children were spread out among three foster homes at the time of trial. The Department had evaluated some of Father's relatives for possible placement, but none of them were appropriate due to criminal and/or Department history.
The foster families communicated and cooperated with each other so the siblings could visit each other twice a month. The foster parents were prepared to adopt all the children except Andrew. He is diagnosed with attention deficit hyperactivity disorder (ADHD) and needs more care than his foster mother can provide. The Department had begun a nationwide search for his placement at the time of trial.
The caseworker and the Child Advocates volunteer agreed each foster home was a safe and stable environment and all the children were blossoming. The trial court questioned each set of foster parents briefly; they all confirmed the children were happy and thriving.
B. Mother
Failure to complete court-ordered services. The evidence that Mother failed to meet the requirements of her court-ordered family service plan is relevant to the best-interest analysis. S.R., 452 S.W.3d at 366.
Department history. Mother has history with child protective services in three states. First, the Tennessee protection agency removed Sarah (16 months) and Andrew (four months) from Mother's care in 2001 due to physical neglect. They remained in state care for seven years.
In March 2009, the Department received a referral alleging medical neglect of Sarah, who had just turned nine, in Texas. She was said to have bowel movements on herself every other day and was afraid to use the toilet. The family moved to Louisiana, and the Department was unable to complete its investigation.
A few weeks later, the Louisiana protection agency removed Sarah, Andrew (eight years), Jacob (15 months), and Xander (two months) on an emergency basis. The agency had received a report alleging neglect of the children. Mother and Father were said to have been fighting the previous evening. Mother "busted out a window and tried to stab" Father. She took Jacob and Xander and walked down the street with them in the cold weather. The report was ruled valid because the parents were "unable to provide for the children due to homelessness, incarceration, inadequate income, domestic violence, and use of marijuana." The children were returned to the parents after two months, and Mother and Father completed parenting classes and counseling.
Drug use. A parent's drug use can qualify as a voluntary, deliberate, and conscious course of conduct endangering the child's well-being. See S.R., 452 S.W.3d at 361; In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Continued drug use may be considered as establishing an endangering course of conduct. S.R., 452 S.W.3d at 361-62. Mother tested negative for drugs twice while the case was in FBSS. On April 7, 2015, though, the day the Department filed this petition for termination, Mother tested positive for marijuana and alcohol. She was positive for marijuana in September 2015 as well.
Untreated mental illness. Mental illness alone is not grounds for terminating the parent-child relationship. S.R., 452 S.W.3d at 363. Untreated mental illness can expose a child to endangerment, however, and is a factor the court may consider. Id.; In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (considering parent's mental health and noncompliance with medication schedule as factors in endangering child).; In re O.D.H., No. 14-15-00489-CV, 2015 WL 6949771, *5-*6 (Tex. App.—Houston [14th Dist.] Nov. 10, 2015, no pet.) (considering parent's failure to take medication to treat mental health issues as factor in creating environment that endangers child's emotional or physical well-being). Mother said she has bipolar disorder and admitted she was not taking her medication. At the time of trial, she said she was trying to find clinics to provide her free treatment. She said she "hadn't had a lot of time" and had "just done a little bit of research."
C. Father
Failure to complete court-ordered services. The evidence that Father did not complete the requirements of his family service plan is relevant to the best-interest analysis. S.R., 452 S.W.3d at 366.
Department history. Father has history with Louisiana child protective services, as discussed above.
Willingness to parent. Father admitted he had not visited or communicated with his children at all since this suit was filed. When asked why he did not visit or send money to support his children, he said he lacked transportation and he "had to support [him]self." There is some evidence of an improvement in Father's financial circumstances. He testified that at the time of trial, he had a three-bedroom home in Louisiana and cut grass for a living. He said he could take care of himself and the children. He did not provide documentation to the Department of his home or job.
D. Conclusion on best interest
Undisputed evidence shows the children are doing well in their foster placements, and their foster parents want to adopt six of the seven children. The Department was searching at the time of trial for a foster-to-adopt placement for Andrew.
Mother testified several times how much she loves her children, and no party suggested otherwise. However, she has untreated mental illness, uses drugs, is not employed, and does not have a place for the children to live. Father said he can and will support his children, but he did not talk with or visit them during the pendency of this suit.
Considering all the evidence, we conclude the evidence is legally and factually sufficient to support the trial court's finding that termination of Mother's and Father's parental rights is in the children's best interest. We overrule Mother's sixth and Father's third issues.
CONCLUSION
We affirm the trial court's judgment.
/s/ Tracy Christopher
Justice Panel consists of Justices Boyce, Christopher, and Jamison.