Opinion
04-22-00665-CV
03-31-2023
IN THE INTEREST OF S.C., a Child
From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2021PA00488 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Irene Rios, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Irene Rios, Justice
Appellant Mother appeals the trial court's order terminating her parental rights to her child, S.C. Mother challenges the sufficiency of the evidence supporting the trial court's finding that termination was in S.C.'s best interest. We affirm.
To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the parents as "Mother" and "Father" and the child as "the child" or using the pseudonym "S.C." See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2). The trial court's order terminated Mother's and Father's parental rights to the child, but only Mother appeals the trial court's order.
Background
The Department of Family and Protective Services ("the Department") became involved in the underlying case on January 24, 2021, when the Department received a referral that S.C. tested positive for methadone and heroin when she was born and was experiencing withdrawal symptoms. There were also allegations Mother and Father engaged in substance abuse and a concern there may be domestic violence between Mother and Father.
On March 22, 2021, the Department filed a petition seeking temporary managing conservatorship of the child and termination of Mother's and Father's parental rights. On September 16, 2022, the trial court held a bench trial. The trial court heard testimony from: Amber Winek, the Department's caseworker; Father; Mother; and paternal grandfather ("Grandfather").
We refer to paternal grandfather as "Grandfather" to protect the identity of the child. See Tex. R. App. P. 9.8(b)(2).
On September 29, 2022, the trial court entered an order terminating Mother's parental rights to S.C. Specifically, the trial court terminated Mother's parental rights based on statutory grounds (N), (O), (P), and (R) in subsection 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(N), (O), (P), (R). The trial court also found it was in S.C.'s best interest to terminate Mother's parental rights. See id. § 161.001(b)(2). Mother appeals.
Statutory Requirements and Standard of Review
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b). Clear and convincing evidence requires "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." Id. § 101.007.
When reviewing the sufficiency of the evidence, we apply well-established standards of review. See id. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (conducting a factual sufficiency review); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (conducting a legal sufficiency review).
"In reviewing the legal sufficiency of the evidence to support the termination of parental rights, we 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.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *2 (Tex. App.-San Antonio Nov. 1, 2017, pet. denied) (mem. op.) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. "A corollary to this requirement is that a [reviewing] court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.
"In reviewing the factual sufficiency of the evidence to support the termination of parental rights, we 'must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.'" J.L.B., 2017 WL 4942855, at *2 (quoting J.F.C., 96 S.W.3d at 266). "A [reviewing court] should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266. "The [reviewing] court must hold the evidence to be factually insufficient if, in light of the entire record, the disputed evidence contrary to the judgment is so significant that a reasonable factfinder could not have resolved that disputed evidence in favor of the ultimate finding." In re M.T.C., No. 04-16-00548-CV, 2017 WL 603634, at *2 (Tex. App.-San Antonio Feb. 15, 2017, no pet.) (mem. op.).
Further, in a bench trial, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. HealthTronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 582 (Tex. App.-Austin 2012, no pet.). This is because "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.-Austin 2014, no pet.) (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.)). We, therefore, defer to the trial court's judgment regarding credibility determinations. Coburn, 433 S.W.3d at 823-24.
Best Interest
Mother argues the evidence is legally and factually insufficient to support a finding that termination of her parental rights is in S.C.'s best interest.
When considering the best interest of a child, we recognize the existence of a strong presumption that the child's best interest is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, we also presume that prompt and permanent placement of the child in a safe environment is in the child's best interest. Tex. Fam. Code Ann. § 263.307(a).
In determining whether a parent is willing and able to provide the child with a safe environment, we consider the factors set forth in section 263.307(b) of the Texas Family Code. See id. § 263.307(b). We also consider the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). "The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." Id. In analyzing these factors, we must focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective & Regul. Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ).
These factors include:
(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 the 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 [or] the child's parents . . .; (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 . . .; and (13) whether an adequate social support system . . . is available to the child.Tex. Fam. Code Ann. § 263.307(b).
These factors include: (1) the child's desires; (2) the child's present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child's best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).
Evidence that proves one or more statutory ground for termination may also constitute evidence illustrating that termination is in the child's best interest. C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). "A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." See 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 and determine whether termination of parental rights is in the child's best interest." Id.
Desires of the Child, Plans for the Child, Emotional and Physical Needs, Vulnerabilities, and Stability
"When children are too young to express their desires, the fact finder may consider that the children have bonded with the foster family, are well-cared for by them, and have spent minimal time with a parent." In re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.-San Antonio 2017, pet. denied). "[T]he 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). "The need for permanence is the paramount consideration for the child's present and future physical and emotional needs." S.J.R.-Z., 537 S.W.3d at 693.
Here, SC was less than two years old at the time of trial and was removed shortly after birth. Amber Winek, the Department's caseworker, testified S.C. is in a fictive kinship placement and is bonded with her current foster parents. According to Winek, there is also a good relationship between S.C. and her foster parents' children. Winek expanded:
[S.C. is] very, very bonded to [the foster parents'] children. In fact, . . . I was fortunate enough to see their morning routine one time. The girls were getting ready to go to school. And [S.C.] smiled at them when she got her morning hug and kiss from them. And it appeared to be a very loving relationship between [S.C.] and the other girls.
Winek opined the foster family is meeting all the child's needs and has demonstrated they can take care of the child's physical and emotional needs now and in the future. For example, the foster family noticed the child "has some sensitivities to texture and she walks on her tippy toes." Winek stated this is "a red flag for autism." See Tex. Fam. Code Ann. § 263.307(b)(1) (listing "the child's age and physical and mental vulnerabilities" as a factor to be considered by the trial court in determining the child's best interest). Acknowledging the foster parents are proactive in addressing the child's needs, Winek testified the foster parents "were very calm" when she discussed a need to assess the child for autism "and they were willing to do whatever I recommend." At Winek's request, the foster parents set up a developmental assessment for S.C. to determine whether she has autism. See In re S.D., 980 S.W.2d 758, 764 (Tex. App.-San Antonio 1998, pet. denied) (holding it was in the children's best interests to place them "in a stable environment where they can receive proper care for their special needs"). Father agreed S.C. is receiving everything she needs at her current placement, stating: "She has love and she is good financially."
Winek testified the child received early childhood intervention services at the beginning of the case because she exhibited developmental delays. Specifically, the child had "weakness on one side of her body, and so she had to have [early childhood intervention] to help strengthen so that she could use both sides of her body equally, which was really important for learning how to . . . crawl, and then walk." Winek opined there has been significant physical improvement since the child was removed. Winek also stated S.C. has experienced significant emotional improvement, testifying:
At the beginning of the case . . ., [S.C.] was very wary of strangers, very shy, and kind of hyperaware of strangers, where . . . she would cry easily even if you just looked at her, which is a little [a]typical for children that age. Usually, it's when you try to hold them that they would cry.
But now she's very curious, very gregarious, runs around, very approachable, saying lots and lots and lots of words. She appears to be [a] very, very bright and capable child.
The court reporter mistakenly capitalized "atypical" in the reporter's record.
In contrast, Winek stated Mother has not demonstrated that she can: (1) remain sober for a significant amount of time; (2) make the necessary changes needed for reunification; (3) take care of the present or future physical and emotional needs of the child; or (4) provide a safe and stable environment for the child now or in the future. See S.J.R.-Z., 537 S.W.3d at 693 ("[A] [child's] young age[] renders [her] vulnerable if left in the custody of a parent who is unable or unwilling to protect [her] or attend to [her] needs."). To support these statements, and as more fully explained below, the trial court heard evidence that Mother has not exhibited stable employment-providing only one paystub for the duration of the case-admitted to smoking marihuana the month before trial, failed to attend a random drug test, has not completed therapy or outpatient drug treatment, and has not provided anything for the care and support of the child. The trial court also heard testimony regarding Mother's criminal past and a charge for assault pending against her. See In re S.L.W., No. 04-22-00425-CV, 2023 WL 28451, at *5 (Tex. App.-San Antonio Jan. 4, 2023, pet. denied) (mem. op.) ("A parent's criminal activities and history are relevant to a best-interest analysis.").
The permanency goal for the child is adoption by her current foster family. Winek testified the foster parents are licensed, willing to adopt the child, and she does not "foresee any barrier to achieving adoption." See In re A.M.M., 04-19-00806-CV, 2020 WL 2139308, at *4 (Tex. App.- San Antonio May 6, 2020, pet. denied) (mem. op.) (indicating evidence the child is "thriving in the current placement" in a "stable and nurturing environment with a planned adoption" supported the trial court's best-interest determination).
These factors weigh in favor of termination.
Emotional and Physical Danger and History of Abuse
In determining the best interest of a child, two factors the trial court considers are "whether there is a history of abusive or assaultive conduct by the child's family or those who have access to the child's home; [and] . . . whether there is a history of substance abuse by the child's family or others who have access to the child's home[.]" Tex. Fam. Code Ann. §§ 263.307(b)(7), (8). "[E]ndangering conduct is not limited to actions directed towards the child." In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). "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.M., 452 S.W.3d 462, 471 (Tex. App.-San Antonio 2014, no pet.).
Here, the trial court heard undisputed evidence the child was born addicted to methadone and heroin and experienced symptoms of withdrawal at birth. S.C. received medical treatment for the withdrawals, and Winek opined the child's developmental issues could be caused by Mother's drug abuse while she was pregnant with the child. Mother admitted she knew abusing drugs while she was pregnant would harm the child.
To address the Department's concern with Mother's drug use, Mother was required to submit to random drug testing and participate in a drug treatment program. While Mother tested negative for all the drug tests she took, Mother missed a drug test on June 30, 2022-approximately two months before trial. Mother claimed she missed the test because she had to work that day. Winek granted Mother an extension to take the drug test until July 1, 2022; however, Mother still failed to take the drug test. Winek testified a drug test is presumed positive for illegal drugs when a parent fails to take the drug test. See In re A.M.L., No. 04-19-00422-CV, 2019 WL 6719028, at *4 (Tex. App.-San Antonio Dec. 11, 2019, pet. denied) (mem. op.) ("The trial court also could have reasonably inferred that [a parent's] failure to appear for drug testing indicated that [the parent] was avoiding testing because he was using drugs."). Mother also admitted to smoking marihuana approximately one month before trial.
Winek testified Mother was unsuccessfully discharged from her drug treatment program for failure to attend her sessions. According to Winek, Mother stopped attending her drug treatment sessions, and when she was going to be unsuccessfully discharged, Mother reengaged. However, Mother again stopped attending sessions and she was unsuccessfully discharged. Mother corroborated Winek's testimony. Mother testified she has not been attending Alcoholics Anonymous/Narcotics Anonymous ("AA/NA") classes or any other relapse prevention program.
We recognize the record does not reflect participation in AA/NA classes is required by Mother's service plan.
Winek opined Mother has not demonstrated she can remain sober for a significant amount of time. See In re K.M., No. 04-08-00037-CV, 2008 WL 2923655, at *2 (Tex. App.-San Antonio July 30, 2008, pet. denied) (mem. op.) (holding a parent's illegal substance abuse "places her children in emotional and physical danger"); see also In re A.N., No. 04-19-00584-CV, 2020 WL 354773, at *3 (Tex. App.-San Antonio Jan. 22, 2020, no pet.) (mem. op.) ("Illicit drug use is relevant to multiple Holley factors, including the children's emotional and physical needs now and in the future, the emotional and physical danger to the children now and in the future, Mother's parental abilities, the stability of Mother's home, and the acts or omissions which may indicate an improper parent-child relationship.").
While Mother claimed she had not taken illegal drugs in nine months, the trial court could have disbelieved Mother's testimony and awarded greater weight to Winek's testimony. See In re E.A.M.V., No. 04-18-00866-CV, 2019 WL 1923214, at *4 (Tex. App.-San Antonio May 1, 2019, pet. denied) (mem. op.) (explaining a trial court could have disbelieved a parent's testimony and we defer to the factfinder on witness credibility issues).
Next, Winek expressed concern over Mother's response to charges against Father for sexual assault of a child. Winek stated Mother and Father have been together throughout the pendency of the case. When she asked Mother about the charges for sexual assault of a child pending against Father, Winek stated Mother acted surprised by the allegations and "didn't really have anything to say about the nature of the charges." Winek thought this was concerning because Mother did not have much of a reaction after learning "the father of her child [could be] a potential danger to her child's physical safety."
Mother claimed she ended her relationship with Father when he was incarcerated. However, Winek testified she cannot "verify whether that is true or not." According to Winek:
[Mother and Father] have denied being in a relationship in the past when, in fact, they were together. So she's not very credible in reporting the truth about the nature of their relationship.
Here, the trial court could have disbelieved Mother ended the relationship with Father and could have inferred that Mother was willing to accept Father's endangering conduct. See In re M.C.L. V, No. 04-21-00277-CV, 2022 WL 219002, at *6 (Tex. App.-San Antonio Jan. 26, 2022, no pet.) (mem. op.) ("A parent endangers her children by accepting the endangering conduct of other people.").
Finally, the trial court heard evidence of Mother's criminal history. See in re J.J.O., No. 04-18-00425-CV, 2018 WL 5621881, at *2 (Tex. App.-San Antonio Oct. 31, 2018, no pet.) (mem. op.) ("Criminal conduct, prior convictions, and incarceration affect[] a parent's life and his ability to parent, thereby subjecting his child to potential emotional and physical danger."). Winek testified Mother has criminal charges pending against her that were not reported to the Department.
In one case, Mother is charged with a theft that allegedly occurred in February or March 2022. Mother is also charged with assault against another inmate while she was incarcerated in 2021. When asked why Mother was incarcerated in 2021, Winek stated she "believe[d] it was a prostitution charge," though Winek conceded she was "not 100 percent sure." Mother did not dispute Winek's testimony regarding her criminal conduct. Winek opined Mother's criminal history is concerning because "it affects the stability of S.C.'s living environment if her parents were arrested." See In re J.M.G., 608 S.W.3d 51, 57 (Tex. App.-San Antonio 2020, pet. denied) (internal quotation marks and alterations omitted) ("A parent's lengthy absence from a child's life during her early years due to incarceration creates an 'emotional vacuum' that threatens the child's emotional well-being and indicates that the parent-child relationship is not a proper one."); see also In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied) ("As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child." (citing S.D., 980 S.W.2d at 763)).
Though Winek was not certain about the prostitution charge, her testimony regarding the theft and assault charges was unequivocal. The assault charge is significant because it tends to show that Mother has a history of assaultive conduct. See Tex. Fam. Code Ann. § 263.307(b)(7) (listing whether there is a history of abusive or assaultive conduct by the child's family as a best- interest factor considered by the trial court); E.D., 419 S.W.3d at 620 (holding a factfinder in a parental termination case may judge a parent's future conduct by his past conduct).
These factors weigh in favor of termination.
Programs, Acts and Omissions, and Willingness to Effect Positive Change
Mother's service plan required her to participate in and complete individual therapy, a psychosocial assessment, random drug testing, a drug assessment and any recommended drug treatment, parenting classes, and domestic violence classes. Mother was also required to attend all parent-child visits and maintain stable housing and employment.
Winek testified Mother is currently engaged in individual therapy; however, she is making minimal progress. As mentioned above, Mother missed one random drug test and has been unsuccessfully discharged from her drug treatment program. Mother completed her parenting classes and domestic violence classes, and has attended all parent-child visits.
Mother claimed she could not complete her services because she needed to prioritize work so that she could save money for an apartment. However, Mother only provided one paystub for a job that she acquired less than two months before trial. As mentioned above, Winek opined Mother has not maintained stable employment throughout the case. Grandfather testified that Mother could live with him as long as she needed, and Winek confirmed this arrangement appeared to be acceptable and stable housing.
The record reflects that Mother completed some of her services, but has failed to complete all of her services in the eighteen months the case was pending at the time of trial. When considering the child's best interest, the trial court could have been particularly concerned about Mother's failure to successfully complete drug treatment, considering Mother abused drugs when she was pregnant with the child and drug abuse was the primary concern that brought the child into the Department's care.
Having reviewed the record and considered all the evidence in the appropriate light for each standard of review, we conclude the trial court could have formed a firm belief or conviction that termination of Mother's parental rights is in S.C.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2); H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d at 573; see also generally In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (recognizing a reviewing court need not detail the evidence if affirming a termination judgment). Accordingly, we hold the evidence is legally and factually sufficient to support the trial court's best-interest finding.
Conclusion
The trial court's order terminating Mother's parental rights to S.C. is affirmed.