Opinion
No. 04-16-00793-CV
06-07-2017
MEMORANDUM OPINION
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2015PA00997
Honorable Charles E. Montemayor, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
M.A.J.M. appeals the trial court's order terminating his parental rights to his children "John" and "Jacob." The sole issue presented on appeal is whether the evidence is legally and factually sufficient to support the trial court's finding that termination was in the children's best interest. We affirm the trial court's order.
The children are identified by aliases. TEX. R. APP. P. 9.8. The trial court also terminated the parental rights of the children's mother, L.T., who did not appeal.
BACKGROUND
On May 13, 2015, the Texas Department of Family and Protective Services filed a petition to terminate M.A.J.M. and L.T.'s parental rights to John and Jacob. On November 3-4, 2016, the trial court held a two-day bench trial on the merits of the case.
The children were removed from their parents' care in May of 2015 because the parents were unable to provide a safe, drug-free home. Jordan Price, the Department's legal case worker, was assigned to the case on August 22, 2016. Price stated she had access to the prior case workers' notes and was able to speak with the prior case workers about the case. Price testified she had attempted to meet with M.A.J.M. multiple times during the pendency of the case but had only met with him once at a house he leased. Price testified M.A.J.M.'s leased house had a staircase too steep for the children, but it did have appropriate places for the children to sleep. Price was notified, however, that M.A.J.M. was given a thirty-day notice to vacate on October 10, 2016.
At the time of trial, John was four-years-old, and Jacob was two-years-old. Both children were placed with their maternal grandmother, A.L. Price testified the children were thriving in their grandmother's care with all of their needs being met in a loving home. On cross-examination, Price testified both L.T. and one of A.L.'s sons were incarcerated for drug offenses. Price was not aware if A.L.'s son had been released from prison and was living with A.L. The Department's plan is for A.L. to adopt the children.
Shortly after the children were removed, a family service plan was developed for M.A.J.M., and Price testified some of the services had been completed. M.A.J.M. completed a parenting class, a domestic violence class, and an intense outpatient program for alcohol abuse. M.A.J.M. was referred to Lifetime Recovery for drug treatment, but he was unsuccessfully discharged after "[h]e just stopped going" with only ten days left to complete the program. On cross-examination, Price stated she did not recall M.A.J.M. sending her a text on September 14, 2016, asking her to again refer him to Lifetime Recovery. After M.A.J.M. was discharged by one therapist because he had two "no shows," he was also unsuccessfully discharged by a second therapist. Price testified she had scheduled M.A.J.M. for counseling three times since she was assigned to the case.
Price testified he did not know if M.A.J.M. was drug free. The court-ordered family service plan required M.A.J.M. to undergo random drug testing. M.A.J.M. was sent for drug tests on September 13, 2016, September 19, 2016, and October 26, 2016; however, he did not appear for any of the tests. In response to one of Price's messages or phone calls about a scheduled drug test, Price testified M.A.J.M. stated, "no thanks. That he's complied with all of CPS's rules and he'll see me in court." During Price's visit to M.A.J.M.'s house, an empty baggy was found outside the house on M.A.J.M.'s patio table, which was described as questionable.
At the time of the children's removal, M.A.J.M. was on probation for evading arrest in a vehicle. Although Price attempted to contact M.A.J.M.'s probation officer, she had not spoken with the officer. Price was not aware if the probation department required regular drug testing or the results of any such tests.
Price testified M.A.J.M. had not provided any support for the children or paid any of the court-ordered child support. Price stated M.A.J.M. is employed, but M.A.J.M. had not provided Price with pay stubs which Price testified he had requested. M.A.J.M. had provided Price with a handwritten letter from his employer on a piece of notebook paper. Price attempted to contact the employer; however, no one answered.
Price testified M.A.J.M. attended his weekly visits with his children, and the visits were appropriate. The children were excited to see M.A.J.M. Price testified the Department denied M.A.J.M.'s request to increase his visits.
Price was requesting the trial court to terminate M.A.J.M.'s parental rights because of his lack of commitment or motivation to complete services and his inability to financially support the children. Price testified termination was in the children's best interest.
With regard to his service plan, M.A.J.M. testified he completed one drug treatment program at Lifetime Recovery and was asked to complete a second program. M.A.J.M. admitted he did not complete the second drug treatment program because he started working and quit going; however, M.A.J.M. testified he asked Price for another referral to the program but had not received any response. M.A.J.M. stated the house in which he was living was in an area known for drugs, so the baggy Price saw "could have come from anywhere." Certificates were introduced into evidence confirming M.A.J.M. had completed a domestic violence class and a parenting class in August of 2015, and an intensive outpatient substance abuse program in July of 2015. With regard to counseling, M.A.J.M. testified the therapist rescheduled an appointment, but the Department's referral expired before the rescheduled appointment date. Price told M.A.J.M. she sent another referral, but the therapist's office informed him they would contact him when they received the referral. M.A.J.M. texted Price two or three times a week regarding the referral, and his attorney also sent emails about the referral. M.A.J.M. testified he had over ten caseworkers while the case was pending, and there were periods of time when no caseworker was assigned.
Despite being ordered to pay child support, M.A.J.M. admitted he had not paid any support for the children, stating A.L. refused to accept his offer to pay support. He further stated he provided snacks and toys for the children once a month. M.A.J.M. testified he also has a sixteen-year-old son but admitted he does not pay regular child support for him.
M.A.J.M. provided copies of three checks he received from his last job to his attorney but not to the Department. M.A.J.M. testified he only recently was told by the CASA volunteer that he needed to provide proof of his income so he started making copies of checks. As evidence of his employment, M.A.J.M. offered the following documents into evidence: (1) a handwritten note from his brother Manuel stating M.A.J.M. was employed by Manuel part-time cutting trees for which M.A.J.M. was paid $10.00 an hour in cash; (2) Manuel's business card which showed he operated his business under the name Martinez Tree Service; (3) a check dated October 30, 2016, approximately four days before trial, in the amount of $50.00 made payable to M.A.J.M. with a memo showing the check was for tree trimming; (4) a check dated October 30, 2016, in the amount of $155.00 made payable to M.A.J.M. with a memo showing the check was for tree service; and (5) a check dated October 31, 2016, in the amount of $153.00 initially made payable to "Martinez Tree Service" but then initialed to be payable to "M.A.J.M. Tree Service."
M.A.J.M. admitted his landlord asked him to find another place to live because she had received reports that M.A.J.M. was selling drugs and prostituting women and did not want to deal with the drama. M.A.J.M. stated he would not be involved in selling drugs or prostituting women because his probation officer or the Department could randomly check his house. M.A.J.M. had to vacate the house by the end of November. M.A.J.M. was in the process of looking for a two-bedroom apartment, but his aunt had an extra room where he could live until he found another place to live.
M.A.J.M. had been on probation for felony evading arrest with a vehicle for four years; however, his probation was scheduled to end on November 7, 2016. M.A.J.M. denied he had an open container when he was arrested. M.A.J.M testified he was drug tested twice a month on random dates while on probation, and he never had a positive test. On cross-examination, however, M.A.J.M. admitted he entered a plea of true on January 16, 2016, to violating the terms of his probation by failing to submit a drug test and doing drugs.
With regard to the children's placement with A.L., M.A.J.M. expressed concern because her neighborhood is in an area known for drugs and prostitutes. In addition, M.A.J.M. had concerns because of the drug use by L.T. and A.L.'s son and testified A.L.'s son sold heroin out of A.L.'s house. M.A.J.M. testified he tried to get L.T. to stop using drugs by taking her drugs away, but A.L. would return the drugs to L.T. M.A.J.M. also testified he saw A.L.'s son, who had been released from prison, in A.L.'s neighborhood and was concerned he was living with A.L.
L.T., who was incarcerated for drug possession at the time of trial, testified M.A.J.M. was involved with prostitution, doing drugs, and breaking into houses during their ten-year relationship. L.T. also testified M.A.J.M. was addicted to alcohol and was violent with her. John had witnessed M.A.J.M. throw a beer at her on one occasion. When M.A.J.M. was not drinking, however, he made sure the children were bathed and fed. When L.T. and M.A.J.M. lived together, L.T. supported the family by prostituting for M.A.J.M.'s mother. L.T. testified M.A.J.M.'s mother moved to California, and M.A.J.M. took over her prostitution business. L.T. stated M.A.J.M. had prostitutes working out of his house which is how he was able to pay his rent. L.T. testified her brother was currently incarcerated for drug possession and would not be released for another year or two.
A.L. testified she once saw M.A.J.M. teaching his older son how to roll a marijuana cigarette. A.L. also witnessed domestic violence between L.T. and M.A.J.M. A.L. testified she works as a medical assistant, owns her home, and has the children enrolled in daycare. A.L. testified M.A.J.M. never provided any support for the children. A.L. contradicted M.A.J.M.'s testimony regarding her son, stating he was not even allowed to be around her house.
After hearing the foregoing evidence, the trial court terminated M.A.J.M.'s parental rights. M.A.J.M. appeals, challenging the sufficiency of the evidence to support the trial court's finding that terminating his parental rights was in the best interest of the children.
STANDARD OF REVIEW
To terminate parental rights pursuant to section 161.001 of the Code, the Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (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.
In reviewing the legal sufficiency of the evidence to support the termination of parental rights, the court must "look at all the evidence in the light most favorable to the 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. "[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.
In conducting a factual sufficiency review of a trial court's order terminating parental rights, 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 256, 266 (Tex. 2002). "In reviewing termination findings for factual sufficiency, a court of appeals must give due deference to a [factfinder's] factfindings and should not supplant the [factfinder's] judgment with its own." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (internal citations omitted). The evidence is only factually insufficient if "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" about the truth of the State's allegations. In re J.F.C., 96 S.W.3d at 266. "The trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witnesses." In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017, no pet.) (mem. op.).
PREDICATE FINDINGS
M.A.J.M. does not challenge the sufficiency of the evidence to support the predicate statutory grounds for terminating his parental rights. Evidence that proves one or more statutory grounds for termination may constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). The trial court found by clear and convincing evidence that M.A.J.M.: (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being; (3) constructively abandoned the children; and (4) failed to comply with the provisions of a court order specifically establishing the actions necessary for him to obtain the return of the children.
BEST INTEREST FINDING
There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, 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. 2016).
In determining the best interest of a child, courts apply the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future emotional and physical danger to the child; (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 held by the individuals seeking custody of the child; (7) the stability of the home of the parent and the individuals seeking custody; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.
The foregoing factors are not exhaustive, and "[t]he absence of evidence about some of [the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest." In re C.H., 89 S.W.3d at 27. "A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). "A trier of fact may measure a parent's future conduct by his past conduct [in] determin[ing] whether termination of parental rights is in the child's best interest." Id.
The children were only four and two at the time of trial. Although the evidence showed they were bonded to both M.A.J.M. and A.L., they were too young to express their desires.
With regard to M.A.J.M.'s parental abilities and his ability to provide for the children's needs, the trial court was required to weigh the evidence regarding his employment by considering: (1) the relationship between M.A.J.M. and his brother Manuel; (2) the inconsistency between Manuel's statement that he paid M.A.J.M. $10.00 an hour in cash and the checks made payable to M.A.J.M.; and (3) the dates of the checks. In addition, the trial court was required to resolve the conflict between Price's testimony that she requested pay stubs from M.A.J.M., and M.A.J.M.'s testimony that the CASA volunteer only recently requested his pay stubs. The trial court also had to weigh L.T.'s testimony that she supported the family prior to her arrest and the children's removal by prostituting for M.A.J.M.'s mother, and M.A.J.M. made his money by running his mother's prostitution business after his mother moved to California. Finally, the trial court had to weigh M.A.J.M.'s failure to provide any financial support for the children during the eighteen months the case was pending despite court orders requiring him to pay support. Based on the foregoing, the trial court could have disbelieved M.A.J.M. was employed trimming trees for his brother and believed M.A.J.M. made his money by illegally prostituting women. Additionally, because the trial court could rely on M.A.J.M.'s past conduct to measure his future conduct, the trial court could have questioned whether M.A.J.M. would financially support the children in the future.
With regard to the present and future emotional and physical danger to the children, Price testified M.A.J.M. failed to complete the Lifetime Recovery program for drug treatment and was unsuccessfully discharged. In addition, M.A.J.M. failed to appear for drug tests scheduled by the Department and admitted he pled true on January 15, 2016, to violating his probation by failing to submit to a drug test and doing drugs. Based on his failure to complete the drug treatment and his refusal to appear for drug testing, the caseworker testified he could not know if M.A.J.M. was "drug free" on the date of trial. After weighing the foregoing evidence, the trial court could have believed M.A.J.M. had not successfully addressed his substance abuse problems which could endanger the children. In addition, the trial court also had to weigh the evidence that M.A.J.M. was illegally prostituting women, which also could endanger the children.
With regard to the stability of M.A.J.M.'s housing, M.A.J.M. had to move from his current house by the end of the month. He acknowledged he was evicted because his landlord received reports he was engaged in selling drugs and prostituting women. Although M.A.J.M. denied any such involvement, noting he was subject to random visits from his probation officer, his testimony was in conflict with L.T.'s testimony, and it was within the trial court's province to weigh the evidence and resolve the conflict. Finally, although M.A.J.M. testified he was looking for a two-bedroom apartment and could live with his aunt in the interim, M.A.J.M. did not call his aunt to testify.
Finally, the trial court had to consider the Department's plan to allow A.L. to adopt the children. A.L. owned her home, was employed as a medical assistant, and had the children enrolled in daycare. The children were bonded with A.L. and were thriving in her care. Although M.A.J.M. expressed concern about A.L.'s son, L.T. testified her brother was still incarcerated, and A.L. testified that son was not allowed around her home. In addition, although the trial court heard testimony that L.T. and one of her brothers were involved with drugs, the trial court also heard testimony that two of A.L.'s other children were drug-free and had stable plans for their lives.
Having reviewed the record, we hold the evidence is sufficient to support the trial court's finding that termination was in the children's best interest.
CONCLUSION
The order of the trial court is affirmed.
Sandee Bryan Marion, Chief Justice