Opinion
04-23-00898-CV
01-31-2024
IN THE INTEREST OF X.T.M. and R.A.M., Children
From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2022-PA-01582 Honorable David A. Canales, Judge Presiding. AFFIRMED
Sitting: Patricia O. Alvarez, Justice, Irene Rios, Justice Beth Watkins, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
Appellant R.N.B. appeals the trial court's order terminating her parental rights to her children, X.T.M. (born 2019) and R.A.M. (born 2021). We affirm the trial court's order.
To protect the privacy of the minor children, we use initials to refer to the children, their biological parents, and their foster parents. Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Background
In September of 2022, the Texas Department of Family and Protective Services implemented a safety plan that called for R.N.B.'s mother to supervise all contact between R.N.B. and the children. Prior to the safety plan's imposition, R.N.B. had been staying in a motel with the children and an unrelated man, and she had cared for the children while under the influence of methamphetamine. Shortly thereafter, R.N.B. removed the children from her mother's residence and left them with a relative of their father, P.M. After P.M. reported that R.N.B. had "left the children with his parent," the Department removed the children and initiated this case.
The Department did not place the children with P.M. because "[h]e was not stable at the time" and he was subject to "a no-contact order for family violence" regarding R.N.B. A Department caseworker testified that P.M. admitted he was not in a position to take the children.
On September 30, 2022, the Department obtained temporary managing conservatorship over the children, placed them in foster care, and filed a petition to terminate R.N.B.'s and P.M.'s parental rights. The Department also created a family service plan requiring R.N.B. to, inter alia, "successfully complete an OSAR and engage in all recommendation[s] and successfully complete all recommendations as ordered by the court," complete a parenting class and a psychological evaluation, and provide proof of employment, income, and appropriate housing as a condition of reunification. The Department ultimately pursued termination of R.N.B.'s parental rights.
Twelve months after removal, the trial court held a one-day bench trial at which R.N.B. appeared. The trial court heard testimony from four witnesses: (1) R.N.B.; (2) the Department's caseworker, Felicia Hill; (3) a court-appointed special advocate supervisor, Kristina Ramirez; and (4) the children's foster father, C.P., Jr. The court also admitted R.N.B.'s and P.M.'s service plans and a CASA volunteer's written report into evidence. At the conclusion of trial, the court signed an order terminating R.N.B.'s parental rights pursuant to section 161.001(b)(1)(N), (O), and (P) and its finding that termination of R.N.B.'s parental rights was in the best interest of the children. R.N.B. appealed.
The trial court also terminated P.M.'s parental rights. He is not a party to this appeal.
Analysis
In three issues, R.N.B. challenges the legal and factual sufficiency of the evidence supporting the trial court's predicate grounds findings; the legal and factual sufficiency of the evidence on which the trial court relied to conclude that termination was in the best interest of the children; and the trial court's appointment of the Department as the children's permanent managing conservator.
Applicable Law and Standard of Review
The involuntary termination of a natural parent's rights implicates fundamental constitutional rights and "divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.-San Antonio 2017, pet. denied) (internal quotation marks omitted). "As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent." Id. The Department had the burden to prove, by clear and convincing evidence, both that a statutory ground existed to terminate R.N.B.'s parental rights and that termination was in the best interest of the children. Tex. Fam. Code Ann. § 161.206; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). "'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 re S.J.R.-Z., 537 S.W.3d at 683.
When reviewing the sufficiency of the evidence supporting a trial court's order of termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). In reviewing the legal sufficiency of the evidence to support the trial court's findings, we 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.O.A., 283 S.W.3d 336, 344 (Tex. 2009). In reviewing the factual sufficiency of the evidence, we consider disputed or conflicting evidence. Id. at 345. A factual sufficiency review requires us to consider the entire record to determine whether the evidence that is contrary to a finding would prevent a reasonable factfinder from forming a firm belief or conviction that the finding is true. See id. The factfinder is the sole judge of the weight and credibility of the evidence. Id. at 346. 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." In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.).
Statutory Termination Grounds
In her first issue on appeal, R.N.B. challenges the legal and factual sufficiency of the evidence to support the trial court's predicate grounds findings. The Department argues R.N.B. waived this issue because she "failed to challenge the correct statutory grounds for termination on appeal." As the Department correctly notes, R.N.B.'s brief appears to primarily argue that termination was not warranted under subsections D and E, even though the trial court terminated her parental rights based solely on subsections N, O, and P.
In its oral rendition of judgment, the trial court expressly declined to terminate R.N.B.'s parental rights based on subsections D and E.
We must construe appellate briefs "reasonably, yet liberally, so that the right to appellate review is not lost by waiver." Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam). "Given the significant deprivation of rights that results from the termination of the parent-child relationship," that duty is of utmost importance in cases like this one. See In re H.D.D.B., No. 01-20-00723-CV, 2022 WL 2251655, at *4 (Tex. App.-Houston [1st Dist.] June 23, 2022, no pet.) (mem. op.).
Here, R.N.B.'s brief argues that while the evidence showed she left the children with P.M.'s parent, she did so because she "was trying to do the right thing by leaving her children in a safe place[.]" We understand this to be an argument that the evidence did not support a finding that she constructively abandoned the children. Tex. Fam. Code Ann. § 161.001(b)(1)(N).
Furthermore, while R.N.B. concedes she did not complete her service plan, see id. § 161.001(b)(1)(O), she contends throughout her brief that she "completed a number of services" and "substantially engaged in" the plan. We understand this argument as questioning "whether the nature and degree of the asserted noncompliance [with the plan, as incorporated into an order of the court] justifies termination under the totality of the circumstances." See In re R.J.G., S.W.3d, No. 22-0451, 2023 WL 8655998, at *2 (Tex. Dec. 15, 2023). She also argues that she "was willing to do everything to be reunited with her children and to maintain sobriety" and that the trial court did not grant her "a reasonable or sufficient amount of time to" address her drug use. We understand this to be an argument that the evidence did not support termination under section 161.001(b)(1)(O) because she "was unable to comply with specific provisions of" her service plan and "made a good faith effort to comply with the" plan. Tex. Fam. Code § 161.001(d). Finally, R.N.B. argues that "she did not use drugs around the children." We understand this to be an argument that she did not use a controlled substance "in a manner that endangered the health or safety of the child[ren.]" Tex. Fam. Code § 161.001(b)(1)(P).
We liberally construe R.N.B.'s brief to challenge each predicate ground upon which the trial court terminated her parental rights. See Perry, 272 S.W.3d at 587; Tex. Fam. Code § 161.001(b)(1)(N), (O), (P). We therefore decline the Department's invitation to hold that R.N.B. waived her first issue. See In re H.D.D.B., 2022 WL 2251655, at *4-5.
Applicable Law
As noted above, the trial court terminated R.N.B.'s parental rights based on subsections N, O, and P. When the trial court terminates a parent's rights on multiple predicate grounds, we may affirm on any one ground. In re A.V., 113 S.W.3d at 362; In re D.J.H., 381 S.W.3d 606, 611-12 (Tex. App.-San Antonio 2012, no pet.).
Subsection N permits a trial court to order termination of the parent-child relationship if the parent "constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department . . . for not less than six months, and: (i) the [D]epartment has made reasonable efforts to return the child to the parent; (ii) the parent has not regularly visited or maintained significant contact with the child; and (iii) the parent has demonstrated an inability to provide the child with a safe environment." Tex. Fam. Code § 161.001(b)(1)(N); see also In re E. N.C. , No. 04-11-00049-CV, 2011 WL 4477790, at *3 (Tex. App.-San Antonio Sept. 28, 2011, pet. denied) ("[a] parent constructively abandons their child when" child has been in Department's conservatorship for requisite time and the three enumerated elements of subsection N are established); In re A.M., No. 05-21-00712-CV, 2022 WL 278972, at *4 (Tex. App.-Dallas Jan. 31, 2022, no pet.) (mem. op.) (same); In re A.R., No. 07-19-00403-CV, 2020 WL 1482454, at *3 (Tex. App.-Amarillo Mar. 26, 2020, pet. denied) (mem. op.) (same); C.G. v. Tex. Dep't of Fam. & Protective Servs., No. 03-18-00852-CV, 2019 WL 3367524, at *7 (Tex. App.-Austin July 26, 2019, no pet.) (mem. op.) (same).
Application
The Department obtained temporary managing conservatorship of the children on September 30, 2022, which was more than six months before the September 19, 2023 trial in this case. See Tex. Fam. Code § 161.001(b)(1)(N). Additionally, the evidence showed that after R.N.B. removed the children from her mother's residence and placed them with P.M.'s parent, she left Texas without them and moved to Indiana in October of 2022. While she returned to San Antonio in November of 2022, she again left Texas without the children-this time for New York-in August of 2023. She did not return to San Antonio until approximately a week before the September 2023 trial.
For purposes of subsection N, the Department's creation of a service plan can satisfy its duty to make reasonable efforts to return the child. See, e.g., In re M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.-Fort Worth 2009, no pet.). Here, the Department's caseworker, Hill, testified that she developed a service plan "in conjunction with" R.N.B. In October of 2022, Hill e-mailed the plan to R.N.B.-who was living in Indiana at that time-discussed it with her, and confirmed that she understood its requirements. Although Hill testified the Department could not pay for out-of-state services, she explained that she sent R.N.B. "references and things that she could call to get her service plan met while she was" in Indiana. When R.N.B. returned to San Antonio in November of 2022, she signed her service plan, and she engaged in services "intermittently" from January through April of 2023, primarily by participating in the Mommies Program. Hill testified that when R.N.B. disengaged from her service plan and the Mommies Program after a spring 2023 relapse, Hill and R.N.B.'s counselor "had been working to try to get her reengaged. We both spoke to her in April. She said she was going to reengage and she just never did."
Hill testified that R.N.B. "would have been able to do the majority of her services if she would have stayed completely engaged with the Mommies Program."
"Implementation of a service plan, however, is not the only means by which the Department can demonstrate reasonable efforts to return a child to a parent for purposes of satisfying subsection (N)." In re A.R., 2020 WL 1482454, at *4. The Department can also carry its burden on this element by making "efforts to encourage the [parent] toward responsible parenthood." Id. Hill testified that when she had trouble contacting R.N.B. throughout this case, she "tried all the phone numbers [she] had for [R.N.B.]," contacted R.N.B.'s relatives, and "checked 'Bexar County Inmate Search,' just to make sure she wasn't arrested." Hill further testified that she had:
done everything from go to [R.N.B.'s] visits [with the children], trying to encourage her to, you know, make sure she's doing the right thing. I mean, I've even, like,
tried to hug her, tried to-you know, I thought maybe she just needs some extra love from me. I've tried everything to keep her engaged in services.
This evidence is legally and factually sufficient to support the trial court's implied finding that the Department made reasonable efforts to return the children. Tex. Fam. Code § 161.001(b)(1)(N)(i); In re M.R.J.M., 280 S.W.3d at 505-06; In re A.R., 2020 WL 1482454, at *3-4.
On the second element of subsection N-whether R.N.B. regularly visited or maintained significant contact with her children-it was undisputed that R.N.B. did not visit the children between April and September of 2023. At trial, R.N.B. testified that she did not know when she last saw her children. Hill testified that before R.N.B. disengaged with her service plan, she was "[s]omewhat" consistent with her visits, but "not always." She explained that R.N.B. attended twelve out of forty-six possible visits during this case. Hill further testified that after R.N.B. returned from New York, she did not ask to visit the children or inquire about their well-being. Finally, Hill testified that she did not believe the children were bonded with R.N.B. because she had not visited them in several months. See In re A.R., 2020 WL 1482454, at *4 (noting evidence that appellant father "took no steps to reach out to" child and "had no relationship with" him). This evidence is legally and factually sufficient to support the trial court's implied finding that R.N.B. did not regularly visit or maintain significant contact with the children. See id.; Tex. Fam. Code § 161.001(b)(1)(N)(ii).
The final element of subsection N asks whether "the parent has demonstrated an inability to provide the child with a safe environment." Tex. Fam. Code § 161.001(b)(1)(N)(iii). In applying this element, the trial court may consider, inter alia, whether the parent lacks stable housing. See C.G., 2019 WL 3367524, at *8. Here, the evidence showed R.N.B. did not have a fixed residence at any point during this case. When the Department became involved with the family, R.N.B. and the children were staying in a motel in Fort Stockton with an unrelated individual. As explained above, between the children's removal in September of 2022 and the trial in September of 2023, R.N.B. lived at various times in Texas, Indiana, and New York. While R.N.B. was in New York, she claimed to be residing in a sober living home, but Hill testified the address R.N.B. gave the Department was either a food pantry or a clothing distributor and that the man R.N.B. claimed was in charge of the facility was not a sober living coach. During some of R.N.B.'s time in San Antonio, she lived with friends and boyfriends and did not respond to Hill's request for information necessary to run background checks on those individuals. At the time of trial, R.N.B. lived at Haven for Hope in San Antonio. While we do not hold that a parent's residence in a homeless shelter, standing alone, is evidence of unstable housing, Hill testified R.N.B. lived in a shelter because "her mother does not allow her to stay at the home" as a result of her "drug history and her drug use[.]" We note, moreover, that the evidence showed R.N.B. had only lived at Haven for Hope for approximately a week before trial and that she had previously left that facility after a short stay there.
The trial court was also permitted to consider R.N.B.'s past substance abuse and her "participation in services and visitation." C.G., 2019 WL 3367524, at *8. The evidence showed R.N.B. had used methamphetamine since she was 17, struggled with her sobriety and relapsed at least once during this case, had not engaged in formal drug treatment, was unsuccessfully discharged from the Mommies Program, and ceased engaging in her service plan after her relapse. Additionally, while R.N.B. testified that she had been sober for two months at the time of trial, the Department presented evidence that she had attempted to purchase marijuana from a stranger in New York approximately one month before trial. Finally, while R.N.B. estimated she "was halfway done" with her services, Hill testified that based on her knowledge of how long it usually takes to complete the Mommies Program, R.N.B. "still really had a long way to go."
After reviewing the evidence under the appropriate standards of review, we conclude the factfinder could reasonably have formed a firm belief or conviction that the Department met its burden on all the required elements of subsection N. Tex. Fam. Code § 161.001(b)(1)(N); In re J.F.C., 96 S.W.3d at 266. Because we hold that legally and factually sufficient evidence supports the trial court's finding of at least one predicate ground for termination, we overrule R.N.B.'s first issue. See In re D.J.H., 381 S.W.3d at 611-12.
Best Interest
Applicable Law
In her second issue, R.N.B. challenges the legal and factual sufficiency of the trial court's finding that termination of her parental rights was in the best interest of the children. There is a strong presumption that a child's best interest is served by maintaining the relationship between a child and the natural parent, and the Department has the burden to rebut that presumption by clear and convincing evidence. See, e.g., In re R.S.-T., 522 S.W.3d 92, 97 (Tex. App.-San Antonio 2017, no pet.). To determine whether the Department satisfied this burden, the Texas Legislature has provided several factors for courts to consider regarding a parent's willingness and ability to provide a child with a safe environment, and the Texas Supreme Court has used a similar list of factors to determine a child's best interest. Tex. Fam. Code Ann. § 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). In analyzing these factors, the court "focuses 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, inter alia: "(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, 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 [. . .]; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child." Tex. Fam. Code § 263.307(b).
Those factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist those individuals to promote the best interest of the child; (6) the plans for the child by these individuals or the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371- 72 (Tex. 1976).
A best interest finding, however, does not require proof of any particular factors. See In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *5 (Tex. App.-San Antonio Apr. 29, 2015, no pet.) (mem. op.). Neither the statutory factors nor the Holley factors are exhaustive, and "[e]vidence of a single factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest." In re J.B.-F., No. 04-18-00181-CV, 2018 WL 3551208, at *3 (Tex. App.-San Antonio July 25, 2018, pet. denied) (mem. op.). Additionally, evidence that proves a statutory ground for termination is probative on the issue of best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Furthermore, in determining whether termination of the parent-child relationship is in the best interest of a child, a factfinder may judge a parent's future conduct by her past conduct. In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). Finally, we 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).
Application
It was undisputed below that R.N.B. had used methamphetamine since she was a teenager, and she admitted to being under the influence while she was caring for the children. Illegal drug use is relevant to multiple best interest considerations-both statutory and Holley factors- including a child's emotional and physical needs now and in the future, a parent's parental abilities, stability of the home, and a parent's acts or omissions pertinent to determining whether the parent-child relationship is improper. See Tex. Fam. Code § 263.307(b)(8); Holley, 554 S.W.2d at 371- 72. "The factfinder can give 'great weight' to the 'significant factor' of drug-related conduct." In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.-Houston [14th Dist.] 2016, pet. denied); see also In re A.L.S., 660 S.W.3d 257, 275-76 (Tex. App.-San Antonio 2022, pet denied) (recognizing "drug use can destabilize the home and expose children to physical and emotional harm if not resolved").
While R.N.B. testified that she was "trying to get back into rehab," it was undisputed that she had not completed any drug-treatment programs. Moreover, while R.N.B. testified that she had been sober for two months at the time of trial, the Department presented evidence that she attempted to acquire drugs approximately one month before trial. See In re D.M., 452 S.W.3d 462, 472 (Tex. App.-San Antonio 2014, no pet.) (in determining the best interest of a child, "a trial court is not bound to accept the truth or accuracy of a parent's testimony, either as to past actions or future intentions"). The trial court could have relied on this evidence to conclude that termination was in the best interest of the children. See, e.g., In re A.M.O., No. 04-17-00798-CV, 2018 WL 2222207, at *2 (Tex. App.-San Antonio, May 16, 2018, no pet.) (mem. op).
A trial court charged with determining a child's best interest may also consider whether a parent complied with a service plan. See In re O.N.H., 401 S.W.3d 681, 687 (Tex. App.-San Antonio 2013, no pet.) ("Non-compliance with a service plan is probative of a child's best interest."). Here, Hill testified R.N.B. engaged with her service plan and "was doing so well" between January and April of 2023, but that she later stopped engaging in services after a drug relapse and did not complete the requirements of the plan. The trial court could have reasonably inferred that R.N.B. lacked parental abilities, including the motivation to seek out and use available resources, based on her lack of engagement and failure to commit to the service plan. In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.-Houston [1st Dist.] 2017, pet. denied) ("A fact finder may infer from a parent's failure to take the initiative to complete the services required to regain possession of his child that he does not have the ability to motivate himself to seek out available resources needed now or in the future."); see also Tex. Fam. Code § 263.307(b)(10) (reviewing willingness/ability of child's family to seek out/accept/complete counseling services and to cooperate with/facilitate an appropriate agency's close supervision as part of best-interest determination); Tex. Fam. Code § 263.307(b)(11) (reviewing willingness/ability of child's family to effect positive environmental/personal changes in a reasonable time to decide child's best interest); Tex. Fam. Code § 263.307(b)(12) (determining whether the child's family demonstrates adequate parenting skills as part of best-interest evaluation).
Finally, a trial court may consider evidence regarding the stability and safety of a parent's home, including whether a parent moves frequently. See In re D.J.R., No. 04-22-00579-CV, 2023 WL 3214552, at *5 (Tex. App.-San Antonio May 3, 2023, pet. denied) (mem. op.); Holley, 554 S.W.2d at 371-72; Tex. Fam. Code § 263.307(b)(12)(D). "Lack of stability, including a stable home, supports a finding that the parent is unable to provide for a child's emotional and physical needs." In re S.R., 452 S.W.3d 351, 367 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). During the year this case was pending below, R.N.B. lived in at least four homes in three different states. Furthermore, Hill testified that even though the children had only been in their current placement for a few weeks at the time of trial, "the structure that the home has" helped the children make positive strides in their potty-training and ability to sleep through the night. Finally, both Hill and the children's foster father testified that their current placement wished to adopt them. Tex. Fam. Code § 263.307(a).
After reviewing the evidence under the appropriate standards of review, we conclude a reasonable factfinder could have formed a firm belief or conviction that termination of R.N.B.'s parental rights was in the best interest of her children. In re J.F.C., 96 S.W.3d at 266. We therefore hold legally and factually sufficient evidence supports the trial court's best interest finding, and we overrule R.N.B.'s arguments to the contrary.
Conservatorship
In her final issue, R.N.B. argues she should be named a possessory conservator of the children because the trial court's parental termination findings are based on insufficient evidence. However, because we have determined that the trial court did not err in terminating R.N.B.'s parental rights, her argument about conservatorship also fails. See In re J.C.R., No. 04-18-00949-CV, 2019 WL 2110109, at *7 (Tex. App.-San Antonio May 15, 2019, pet. denied) (mem. op) (concluding parent whose rights had been terminated "no longer has any legal rights with respect to [the child] and cannot challenge the portion of the termination order that relates to the appointment of a conservator").
Conclusion
We affirm the trial court's order of termination.