Summary
holding J.M. demonstrated inability to provide child with safe environment by failing to maintain contact with TDFPS, failing to attend counseling or parenting classes, failing to take required drug tests, even though J.M. had obtained housing and employment several months before trial
Summary of this case from C. S. v. Tex. Dep't of Family & Protective Servs.Opinion
NO. 03-12-00161-CV
06-26-2012
J. M., Appellant v. Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF LEE COUNTY, 21ST JUDICIAL DISTRICT
NO. 13,996, HONORABLE REVA TOWSLEE CORBETT, JUDGE PRESIDING
MEMORANDUM OPINION
J. M. appeals the trial court's order terminating her parental rights to her four children, Ja. M., Jay. M., S. M., and L. M., following a bench trial.See Tex. Fam. Code Ann. § 161.001 (West Supp. 2011). In eight issues, J. M. challenges the legal and factual sufficiency of the evidence to support the order of termination. Because we conclude that the evidence was legally and factually sufficient, we affirm the trial court's order.
We use initials to refer to appellant and her children. See Tex. R. App. P. 9.8.
The respective fathers' rights were also terminated. They have not appealed the order of termination.
BACKGROUND
In April 2009, the Texas Department of Family and Protective Services filed an original petition for protection of a child, conservatorship, and termination in suit affecting the parent-child relationship. The suit sought to terminate J. M.'s parental rights, as well as the respective fathers' rights, to S. M., Ja. M., and Jay. M. At that time, J. M. was incarcerated and the children were living with J. M.'s mother. The trial court appointed the Department temporary managing conservator of the children, and the children were placed in foster care.
L. M. was born in June 2010. Shortly after he was born, the Department filed a first amended petition for protection of a child, conservatorship, and termination in suit affecting the parent-child relationship. The Department sought to terminate J. M.'s parental rights to L. M. as well as the other children. The trial court appointed the Department temporary managing conservator of L. M., and L. M. was placed with the same foster parents as J. M.'s other children.
The parties entered into a mediated settlement agreement in October 2010, and the trial court thereafter signed a final order incorporating the settlement agreement by reference. In the order, the trial court denied the Department's request for termination, appointed the Department the permanent managing conservator of the children, and appointed J. M. the possessory conservator of the children with supervised visitation rights. J. M. was ordered, among other actions, to: (i) obtain and maintain appropriate housing within six months, (ii) report to the Department any changes to the membership composition of her household, any changes in her address, telephone number, or other contact information, or any changes in employment within 48 hours, (iii) maintain gainful employment and provide monthly pay subs to the Department, (iv) initiate telephone contact with her caseworker every Monday, (v) comply with the Department's requests for random drug tests within eight hours of a request, (vi) participate in in-home parent training, and (vii) participate in in-home individual therapy and follow the therapist's recommendations.
In May 2011, the Department filed a second amended petition for protection of a child, conservatorship, and termination in suit affecting the parent-child relationship and a motion to modify the existing final order. At that time, J. M. had not visited with her children for several months. In January 2012, the Department filed a third amended petition and motion to modify the existing final order. The Department, among other grounds, alleged that J. M. had constructively abandoned her children. See id. § 161.001(1)(N).
The bench trial occurred in February 2012. The Department called J. M.'s therapist, the caseworker assistant who transported the children and supervised visits, the court-appointed special advocate, the conservatorship caseworker, and J. M. It was undisputed that J. M. had not visited with her children or had any other contact with them for over a year. The conservatorship caseworker testified that she became the caseworker in January 2010 and that the Department had arranged visits for the last thirteen months but that J. M.'s last visit with her children was in January 2011. The caseworker assistant testified that J. M. did not request that the caseworker assistant transport the children for a visit, and J. M. confirmed that she had not visited with her children for over a year. J. M. also answered "No, ma'am" when asked if she had written her children "a letter or anything."
J. M. testified that she was unable to attend visits with her children because of transportation and work schedule issues. She testified that she was able to visit with her children when she lived in Austin for several months after the mediated settlement but that she moved to Giddings and the Department then moved the visits farther away from her. J. M. testified that she had bought "stuff" for her children but that she "had no transportation to get to where I needed." She depended on others to get her places, including to her job in Giddings. Although she testified that she wanted her children back, J. M. answered "Yes, ma'am" when asked if she understood that her children were in a good home. She also answered "It probably would be" when asked if, at this point, taking care of four more lives "would be just a bit too much for you." She further testified that "it would be probably hard" for her if her children came back to live with her.
The conservatorship caseworker testified about the Department's history with the family, the children's current placement, the Department's plans for the children, and J. M.'s compliance with the 2010 order that incorporated the parties' mediated settlement agreement. The Department placed the children in foster care in 2009, and they remained there at the time of the trial. The caseworker testified that the children were "well bonded" with their foster parents and doing well in their current placement. The Department's plan for the children was for their foster parents to adopt them if parental rights were terminated.
As to J. M.'s compliance with the 2010 order, the caseworker testified that: (i) she scheduled in-home parent training for J. M., but it was an "unsuccessful closure, mostly due to [J. M.] not attending," (ii) J. M. was not "available" on the phone numbers that she had for J. M., (iii) J. M. did not maintain telephone contact on Mondays, and (iv) J. M. did not comply with requests by the Department for random drug tests on three occasions. The caseworker also testified that J. M. did not allow her to see the inside of J. M.'s house in October 2011 during a "pop-in visit" but that J. M. let her inside the house in January 2012. At that time, a wall to the outside was missing in one room and there was a "large metal heater inside the doorway." The caseworker testified that she was not comfortable with four children living in that house.
The court-appointed special advocate, who was appointed in November 2010, testified that the children were "in an extremely good situation" in their current placement and that they have "bonded significantly with their foster parents." She testified that the last visit that she supervised between J. M. and the children was over a year ago, that J. M. cancelled other scheduled visits, and that the children did not talk about J. M. or "express any desire" to see her. It was her opinion that it would be "very difficult" for J. M. to take care of the children:
I think, since [J. M.] has a hard time making—going to visits and attending court, that it would be very difficult for her to take care of her children.She also opined that it was in the children's best interest to terminate parental rights.
J. M.'s therapist testified that J. M. had made "minimal" progress and not followed the therapist's suggestions, including to visit her children. The therapist testified that she was working with J. M. on borderline personality disorder to help J. M. "think like an adult and react like an adult," and that J. M. was not regularly attending therapy. The therapist answered "No, sir" when asked if J. M. "was able to provide a safe and loving environment for her children."
After the close of evidence, the trial court found that J. M.'s parental rights should be terminated and signed the order of termination. The trial court found four predicate grounds that supported termination under section 161.001 of the family code and that termination was in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (N), (O), (2). The trial court appointed the Department the permanent managing conservator of the children. In response to a request by J. M., the trial court also made findings of fact and conclusions of law.
The trial court's findings of fact included:
2.4. A mediated settlement agreement was entered into on October 8, 2010 and was approved by the court on October 12, 2010.[] This order specified actions necessary for [J. M.] to obtain the return of the children who had been in the temporary managing conservatorship of the [Department] for not less than nine months as a result of the children's removal from the parent under chapter 262 for abuse and neglect of the children.This appeal followed.
2.5. Among the specific actions required of [J. M.], was that she attend therapy and successfully complete parenting class. [J. M.] missed a substantial number of therapy sessions and was discharged from therapy for failure to attend regularly.
2.6. [J. M.] constructively abandoned the children who have been in the permanent or temporary managing conservatorship of the [Department] . . . for not less than six months and: (1) the Department . . . has made reasonable efforts to return the children to the mother; (2) [J. M.] has not regularly visited or maintained significant contact with the children; and (3) [J. M.] has demonstrated an inability to provide the children with a safe environment;
. . .
2.8. [J. M.] has not visited with the children in over a year.
2.9. Termination of the parent-child relationship between [J. M.] and the children . . . is in the best interest of the children.
2.10. There has been a material change in circumstances of the final order entered on October 12, 2010 and the continuation of that order is not in the best interest of the children.
The clerk's record reflects that the trial court signed the order in December 2010. The discrepancy in the date, however, does not impact the issues on appeal.
ANALYSIS
To terminate parental rights pursuant to section 161.001 of the family code, the Department has the burden to prove one of the predicate grounds in subsection (1) and that termination is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable standard of proof is the clear and convincing standard. Tex. Fam. Code Ann. § 161.206(a) (West 2008); see In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (due process requires clear and convincing standard of proof in parent termination cases). The clear and convincing standard is "'that measure or degree of proof which 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.'" In re C.H., 89 S.W.3d 17, 23 (Tex. 2002) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)); see also Tex. Fam. Code Ann. § 101.007 (West 2008) (defining clear and convincing evidence).
J. M. raises legal and factual sufficiency challenges to the evidence. Legal sufficiency review of the evidence to support a termination finding requires a court to "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. In reviewing the factual sufficiency of the evidence to support a termination finding, a court "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." Id. (citing In re C.H., 89 S.W.3d at 25); see also In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (describing factual sufficiency standard of review in appeals from termination orders). "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 J.F.C., 96 S.W.3d at 266.
Statutory Predicate Ground
In her first five issues, J. M. challenges the factual and legal sufficiency of the evidence to support the predicate grounds that the trial court found to support its order of termination. See Tex. Fam. Code Ann. § 161.001(1) (D), (E), (N), (O). Because the order can stand on one predicate ground plus a best interest finding, we limit our review to the trial court's finding of constructive abandonment. See In re A.V., 113 S.W.3d at 362 (explaining that only one predicate ground necessary to support termination of parental rights when there is also best interest finding).
To prove the constructive abandonment ground, the Department had to show as to each of her children that she:
constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services . . . for not less than six months, and:See Tex. Fam. Code Ann. § 161.001(1)(N).
(i) the department . . . 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.
J. M. does not challenge the sufficiency of the evidence to support the trial court's findings that her children were in the managing conservatorship of the Department for not less than six months and that she had not regularly visited or maintained contact with her children. Her challenge is to the sufficiency of the evidence to support the trial court's findings that the Department made reasonable efforts to return the children to her and that she had demonstrated an inability to provide her children with a safe environment.
(i) Reasonable Efforts
J. M. contends that the Department did not make reasonable efforts to return the children to her because the Department moved the visits "so far away" that J. M. could not visit her children given her transportation and work schedule issues.
Viewing the evidence in the light most favorable to the trial court's finding of reasonable efforts, J. M. did not request that the caseworker assistant transport the children for a visit and J. M. was told that the Department would arrange to transport J. M. for visits "if she needed it" but she did not request it. Further, the conservatorship caseworker testified about the Department's efforts with J. M. and the services provided to J. M. See In re K.G., 350 S.W.3d 338, 354 (Tex. App.—Fort Worth 2011, pet. denied) (caseworker's testimony about her efforts with the mother and the services provided to the mother was sufficient to support "'reasonable efforts' element"); In re N. R. T., 338 S.W.3d 667, 674 (Tex. App.—Amarillo 2011, no pet.) (Department's implementation of family service plan "ordinarily considered a reasonable effort" to return child to parent). The caseworker testified that she set up in-home parent training for J. M., attempted to maintain contact with J. M., attempted to schedule visits for J. M. and the children, and visited J. M.'s home.
Viewing all of the evidence, the Department moved the location for visits with the children farther away from J. M. after she moved to Giddings. But the evidence showed that the Department changed the location so that the visits would be closer to the children's foster home. The trial court also reasonably could have credited the caseworker's testimony to form a firm belief that the Department made reasonable efforts to return the children to J. M. See In re C.H., 89 S.W.3d at 23; see also In re H.R.M., 209 S.W.3d at 108 ("In reviewing termination findings for factual sufficiency, a court of appeals must give due deference to [factfinder's] factfindings, . . . and should not supplant the [factfinder]'s judgment with its own." (internal citation omitted)). We therefore conclude that the evidence was sufficient to support the trial court's finding that the Department made reasonable efforts to return the children to J. M.
(ii) Inability to Provide Safe Environment
As to her inability to provide a safe environment for her children, J. M. urges that the only evidence presented was that she lived in the country and in a home under construction and that neither fact prevents a parent from providing a safe environment for their children.
Viewing the evidence in the light most favorable to the trial court's finding of inability to provide a safe environment, J. M. did not complete in-home parent training, regularly attend therapy, or have dependable transportation, and she failed to maintain contact with the Department, to financially support her children, or take requested drug tests. The therapist testified that she was working with J. M. on borderline personalty disorder, that J. M. had made "minimal progress," that she was not following her suggestions, and that, in her opinion, J. M. was not able to provide a safe environment for her children. The conservatorship caseworker also testified as to the condition of J. M.'s home and her discomfort with the children living there, and J. M. admitted that it would be very difficult for her to take care of her children.
Viewing all of the evidence, J. M. had been employed and had housing for several months prior to the trial. The trial court, however, reasonably could have credited the testimony from the caseworker, the therapist, and J. M. as to her inability to care for her children to form a firm belief that J. M. demonstrated an inability to provide her children with a safe environment. See In re C.H., 89 S.W.3d at 23; M.C. v. Texas Dep't of Family & Protective Servs., 300 S.W.3d 305, 310-11 (Tex. App.—El Paso 2009, pet. denied) (evidence showing lack of transportation and employment and failure to obtain treatment for mental illness supported finding that parent unable to provide safe environment for child); In re J.J.O., 131 S.W.3d 618, 630 (Tex. App.—Fort Worth 2004, no pet.) (evidence sufficient to support finding that parent unable to provide safe environment for children despite evidence that parent had obtained housing and employment). We conclude that the evidence was sufficient to support the trial court's finding that J. M. demonstrated an inability to provide her children with a safe environment.
Given our conclusions as to the sufficiency of the evidence to support the trial court's findings as to the Department's reasonable efforts and J. M.'s inability to provide a safe environment, we conclude then that the evidence was legally and factually sufficient to support the trial court's finding of constructive abandonment. See Tex. Fam. Code Ann. § 161.001(1)(N); In re J.F.C., 96 S.W.3d at 266. We therefore overrule J. M.'s fifth issue to the extent it challenges the sufficiency of the evidence to support the trial court's constructive abandonment finding. Further, we need not address J. M.'s remaining issues challenging the sufficiency of the evidence to support the trial court's findings as to the other predicate grounds. See In re A.V., 113 S.W.3d at 362; see also Tex. R. App. P. 47.1.
Best Interest Finding
In her sixth issue, J. M. challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of her parental rights was in the best interest of her children. See Tex. Fam. Code Ann. § 161.001(2); Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
Factors that courts consider in assessing the best interest of a child include: (i) stability of the home or proposed placement, (ii) parental abilities, (iii) the emotional and physical needs of the child now and in the future, (iv) the emotional and physical danger to the child now and in the future, (v) the plans for the child by the individual or agency seeking custody, (vi) conduct by a parent showing parent-child relationship not proper, and (vii) any excuses for the parent's conduct. Holley, 544 S.W.2d at 372; see also Tex. Fam. Code Ann. § 263.307 (West 2008) (stating that "prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest" and listing factors that court should consider "in determining whether the child's parents are willing and able to provide the child with a safe environment"). No one factor is controlling, and evidence presented to satisfy the predicate ground finding may also be probative of the child's best interest. In re C.H., 89 S.W.3d at 28; Pruitt v. Texas Dept. of Family &Protective Servs., No. 03-10-00089, 2010 Tex. App. LEXIS 10272, at *22-23 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.).
Viewing the evidence in the light most favorable to the trial court's best interest finding, it was undisputed that J. M. had not had contact with her children for over a year, and J. M. acknowledged how hard it would be for her to care for her children. She did not have transportation and depended on a ride to get to work. J. M.'s therapist, the court-appointed special advocate, and the conservatorship caseworker also testified as to their concerns if the children were returned to her, providing their reasoning, and the court-appointed special advocate testified that the children did not ask about J. M. or express a desire to see her. Further, it was undisputed that the children were doing well in their current placement and that the plan was for the foster parents to adopt the children.
Viewing all of the evidence, J. M. testified that she wanted her children back and explained why she had been unable to visit with her children. The evidence also showed that she attended some of her therapy and parent training sessions and obtained employment and housing. The caseworker, however, testified that J. M. did not complete the parent training, that J. M. had "not been available on the phone numbers that I have regularly called her on," and that J. M. would not let her inside J. M.'s house during a "pop-in visit" in October 2011. The trial court reasonably could have credited the undisputed evidence and the caseworker's testimony, as well as the testimony of the therapist and the court-appointed special advocate, to form a firm belief that termination of J. M.'s parental rights was in the best interest of her children. See In re C.H., 89 S.W.3d at 23. We conclude then that the evidence was legally and factually sufficient to support the trial court's best interest finding. See In re H.R.M., 209 S.W.3d at 108; In re J.F.C., 96 S.W.3d at 266. We overrule J. M.'s sixth issue.
Section 161.004
In her seventh and eighth issues and as part of her fifth issue challenging the constructive abandonment finding, J. M. argues that section 161.004—and not section 161.001—applies because this case went to trial as a petition to terminate on a motion to modify after termination had been previously denied. See Tex. Fam. Code Ann. § 161.004 (West 2008). In the October 2010 order incorporating the parties' mediated settlement agreement, the trial court denied the Department's request to terminate J. M.'s parental rights.
J. M. also contends that the evidence was legally and factually insufficient to support the termination of J. M.'s parental rights under section 161.004. She urges that, under section 161.004, the relevant time period for determining a predicate ground, such as constructive abandonment, was prior to October 2010, the date of the order incorporating the mediated settlement agreement, and that there was no evidence presented regarding the circumstances of the parties in October 2010 to show a change in the intervening period.
To support a termination finding under section 161.004, the Department would have to show that J. M. committed an act listed in section 161.001 before the date of the order denying termination was rendered, that termination was in the best interest of the children, and that circumstances "have materially and substantially changed" since the rendition of the order to be modified. See id.Among its findings, the trial court found that there had been a material change in circumstances of the final order entered in October 2010 and that the continuation of that order was not in the best interest of the children.
Section 161.004 of the family code states:
(a) The court may terminate the parent-child relationship after rendition of an order that previously denied termination of the parent-child relationship if:(1) the petition under this section is filed after the date the order denying termination was rendered;(b) At a hearing under this section, the court may consider evidence presented at a previous hearing in a suit for termination of the parent-child relationship of the parent with respect to the same child.
(2) the circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered;
(3) the parent committed an act listed under Section 161.001 before the date the order denying termination was rendered; and
(4) termination is in the best interest of the child.
The Department's evidence of constructive abandonment, however, showed actions and conduct occurring after the October 2010 order. Because we have concluded that this evidence was sufficient to support termination under section 161.001, evidence to support termination under section 161.004—such as evidence of changed circumstances or constructive abandonment prior to October 2010—was not required. See In re K.G., 350 S.W.3d at 352 (concluding that section 161.004 was not "only way" that trial court could terminate parental rights in subsequent proceeding after order dismissing termination suit and upholding termination under section 161.001 based upon evidence of conduct occurring after dismissal order entered (emphasis in original)); see also In re N. R. T., 338 S.W.3d at 678-79 (addressing section 161.004 in context of res judicata challenge based upon prior order denying termination and evidentiary challenge to trial court's consideration of evidence predating order denying termination).
J. M. also urges that if this Court upholds the order of termination, this Court is effectively ignoring the one-year deadline for the determination of termination cases. See Tex. Fam. Code Ann. § 263.401 (West 2008) (generally suit affecting parent-child relationship subject to dismissal after it has been pending for one year). But a party waives the right to object to the trial court's failure to dismiss if the party does not make a timely motion to dismiss. See id. § 263.402(b) (West 2008). "A motion to dismiss under this subsection is timely if the motion is made before the trial on the merits commences." Id. Here, J. M. did not move to dismiss the suit prior to the commencement of the trial on the merits and, therefore, has waived any complaint based upon section 263.401. See id.
We overrule J. M.'s seventh and eighth issues and her fifth issue to the extent that she argues that the relevant time period for determining constructive abandonment was prior to October 2010.
CONCLUSION
Having overruled J. M.'s dispositive issues, we affirm the trial court's order of termination.
____________
Melissa Goodwin, Justice
Before Justices Puryear, Henson and Goodwin Affirmed
Tex. Fam. Code Ann. § 161.004 (West 2008).