Opinion
NO. 01-17-00079-CV
06-20-2017
IN THE INTEREST OF N.N.M. AND R.B.A. III, CHILDREN
On Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2016-00274J
MEMORANDUM OPINION
After a bench trial, the trial court terminated the parental rights of M.V., the biological mother of N.N.M and R.B.A. III. The mother appeals the termination decree. She concedes that sufficient evidence supports the predicate grounds found by the trial court to support termination of her parental rights, but contends that the evidence is legally and factually insufficient to support the trial court's finding that termination was in the children's best interest. We affirm.
Background
In April 2014, the Department received two referrals concerning the mother's treatment of the older child, who was then about nine months old. The first referral alleged that the mother was using drugs and in a physically abusive relationship. These behaviors placed the child in jeopardy. The referral cites one instance in which the mother's paramour threw a brick through the mother's car window while the older child was in the car.
The second referral contained allegations that the mother neglected and physically abused the older child. The mother reportedly was using mind-altering substances and tested positive for marijuana. The child lost weight in the mother's care, was unclothed, had bruising on "a vital body area," and had untreated diaper rash. The investigation resulted in findings against the mother that supported a reason to believe neglectful supervision and physical neglect.
The Department initiated Family-Based Safety Services (FBSS) and placed the child with her godparent. The mother, who by then was pregnant with the younger child, performed the services required in FBSS, including participation in a drug rehabilitation program. She left the rehabilitation facility, however, before completing the program. She refused to submit to drug testing in November 2014. She also stopped attending counseling sessions three meetings short of completion, telling the Department that she had been put on bed-rest until her due date at the end of December. Her drug screen was negative when she gave birth to the younger child two weeks later.
Based on the mother's progress toward completing her FBSS services and the negative drug screen, the Department allowed her to bring the younger child home from the hospital with her. In late January 2015, however, the mother left the younger child with his godmother, claiming that she intended to find work and stable housing. Shortly thereafter, the mother relapsed into drug abuse.
The Department took custody of the children. Pursuant to the trial court's order, the children, who had been living apart from each other with their godmothers, were placed together in a foster home.
The mother's caseworker was unable to locate the mother again until late April 2015. When the caseworker met with her then, the mother refused to provide a hair follicle sample for drug testing, but agreed to provide a urine sample, which tested negative for illegal drugs.
The mother refused to submit to any further drug testing in April and May. In June and July 2015, the mother neither called the caseworker nor returned the caseworker's calls. The mother called the caseworker in early August, but again refused to submit to drug testing. She fell out of contact with the Department again in September.
The mother had her next meeting with the caseworker in mid-October. At that meeting, the mother refused to submit to drug testing. The caseworker gave her another referral to a drug treatment facility, but the mother did not go for treatment.
In November 2015, the mother agreed to submit to drug testing, but said she could not provide a hair sample because she had shaved off all of her hair. The urine sample she provided in early December tested negative.
The mother attended a family meeting at the Department's offices a week later. She gave the Department her assurance that she would comply with the earlier service plan. The Department also got the mother's consent to submit to a drug test. This time, the technician was able to extract a small hair specimen, which tested positive for a very high level of cocaine. The specimen was too small to test for other substances.
In March 2016, the mother's urine and hair specimens tested positive for Xanax, cocaine, and marijuana. The cocaine and cocaine metabolites tested at an exceptionally high level; the technician testified that it was the highest reading he had seen in his 25-year career. He informed the court that a person would have had to use the drug continuously for the three days before testing to reach a level that high. The level of marijuana metabolite detected in the mother's specimen demonstrated that she was a habitual user.
The testing of the mother's specimens provided in September 2016 yielded a negative result for the urine test but a positive result for marijuana for the hair sample.
The mother visited the children throughout the pendency of the case. As of December 2016, however, she had not completed the majority of her services. The mother did not appear for the December trial date and did not provide any reason for her absence. The mother is homeless.
By the trial date, the older child was three and the younger was one. They had been placed in an adoptive foster home three months earlier. The younger child has weekly speech therapy and the older child takes medicine for a skin condition, but they have no other special needs. The caseworker agreed that the adoptive placement was a "good, kind, caring, loving home." The children's guardian ad litem concurred, informing the trial court that the children were in "a great home" and had bonded with the prospective adoptive parents.
Discussion
The trial court's decree identifies subsections 161.001(b)(1)(E), (N), and (O) of the Texas Family Code as alternate predicate grounds for termination of the mother's parental rights. Subsection (E) requires the Department to prove that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (West Supp. 2016). Subsection (N) requires the Department to prove that the parent constructively abandoned the child while the child was in the Department's managing conservatorship for not less than six months by showing that (1) the Department "has made reasonable efforts to return the child to the parent; (2) the parent has not regularly visited or maintained significant contact with the child; and (3) the parent has demonstrated an inability to provide the child with a safe environment." TEX. FAM. CODE ANN. § 161.001(b)(1)(N) (West Supp. 2016). Under subsection (O), the Department must show that the parent failed to complete the classes and other tasks required by the court-ordered family service plan. TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (West Supp. 2016).
If the evidence supports the trial court's conclusion that termination of the mother's parental rights is in the children's best interest, any one of these grounds would suffice to support the termination decree. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In her brief, the mother concedes that the evidence is legally and factually sufficient to support all three of these predicate grounds. Consequently, the sole issue on appeal concerns whether the evidence is legally and factually sufficient to support the trial court's best-interest determination.
I. Standard of Review
The mother concedes the sufficiency of the evidence supporting the trial court's predicate findings for termination of her parental rights, but challenges the legal and factual sufficiency of the trial court's finding that termination is in the children's best interest. In conducting a legal-sufficiency review in a parental-rights-termination case brought by the Department, we look at the entire record to determine whether the evidence, viewed in the light most favorable to the finding, is such that a reasonable factfinder could have formed a firm belief or conviction about the truth of the matter on which the Department had the burden of proof. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We "assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so," and we "disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d at 266). We also remain mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id. If we determine that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, we must hold the evidence to be legally insufficient and render judgment in favor of the parent. In re J.F.C., 96 S.W.3d at 266.
In conducting a factual-sufficiency review in a parental-rights-termination case, we determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a factfinder reasonably could have formed a firm conviction or belief about the truth of the matter on which the Department bore the burden of proof. See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We consider whether the disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. "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." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (quoting In re J.F.C., 96 S.W.3d at 266).
There is a strong presumption that the best interest of the child will be served by preserving the parent-child relationship. In re J.F.C., 96 S.W.3d at 294; see TEX. FAM. CODE ANN. § 153.131(b) (West 2014). At the same time, prompt and 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) (West Supp. 2016).
II. Best Interest of the Children
The mother contends that the evidence is legally and factually insufficient to prove that termination of her parental rights is in her children's best interest. The Texas Supreme Court has provided a non-exclusive list of factors that may be considered in determining whether the termination of a parent's rights is in a child's best interest. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include
• the desires of the child,Id. The Department need not prove all of the Holley factors as a condition precedent to parental termination. In re C.H., 89 S.W.3d at 27. Undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child, but the presence of scant evidence relevant to each Holley factor will not support such a finding. Id.; In re J.J.O., 131 S.W.3d 618, 630-31 (Tex. App.—Fort Worth 2004, no pet.). Evidence proving one or more of the statutory grounds for termination may also be probative in determining that termination is in the best interest of the child. In re E.C.R., 402 S.W.3d 239, 249-50 (Tex. 2013) (citing In re C.H., 89 S.W.3d at 28).
• the emotional and physical 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 individuals seeking custody,
• the programs available to assist these individuals to promote the best interest of the child,
• the plans for the child by these individuals or by the agency seeking custody,
• the stability of the home or proposed placement,
• the acts or omissions of the parent that may indicate the existing parent-child relationship is not proper, and
• any excuse for the acts or omissions of the parent.
The children are too young to express their desires. The evidence, however, shows that they have bonded with their foster parents, who plan to adopt them. The foster parents are providing a stable and loving home for the children and are making sure their needs, such as those for speech therapy and medical attention, are met.
The mother responds that she made significant strides in completing her family service plan and in attending meetings and court hearings. While the mother made an effort to complete services in the months before the younger child's birth, she did not resume those efforts at any point during the year afterward and did not attend the trial. The mother provided no excuse for her failure to complete her service plan or attend the trial. Shortly after giving birth to the younger child, the mother relapsed into drug abuse. She refused to return to drug treatment, refused drug testing, and made no demonstrable progress toward completing any of the other required services during the year before trial.
The mother also notes that she visited her children "for the most part" while they were in the Department's care. Counterbalanced against the evidence that she visited her children is the mother's inability to parent and cope with her drug addiction and her resulting homelessness. Though she visited the children while they were in the Department's care, the mother did not contradict the evidence that the older child suffered from malnutrition and lack of basic care while in her mother's care and had been abused. We defer to the trial court's evaluation of the witnesses' credibility and the weight to give this testimony in resolving that dispute.
The mother does not dispute that, if the children were returned to her, her drug abuse and homelessness would subject them to an environment that would endanger their physical and emotional well-being. See Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied)); see also In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (recognizing that parent's use of narcotics can support endangerment finding because drug abuse impairs parent's ability to care for children). By conceding that legally and factually sufficient evidence supports subsection 161.001(b)(1)(N), the mother admits that she "demonstrated an inability to provide the child with a safe environment." TEX. FAM. CODE ANN. § 161.001(b)(1)(N). Considering the entire record, we hold that the evidence is legally and factually sufficient to support the trial court's finding that termination of the mother's parental rights was in the children's best interest.
Conclusion
We affirm the decree of the trial court.
Jane Bland
Justice Panel consists of Justices Higley, Bland, and Brown.