Opinion
03-24-00247-CV
08-21-2024
K. H., Appellant v. Texas Department of Family and Protective Services, Appellee
FROM THE 433RD DISTRICT COURT OF COMAL COUNTY NO. C2023-0910D, THE HONORABLE MELISSA MCCLENAHAN, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Triana and Kelly
MEMORANDUM OPINION
Darlene Byrne, Chief Justice
K.H. appeals from the order terminating her parental rights to her child, J.H. K.H. contends that the evidence was legally and factually insufficient to support the conclusion that termination of her parental rights was in the child's best interest. We will affirm the trial court's termination order.
The termination of the father's parental rights is not part of this appeal.
APPLICABLE LAW
To terminate the parent-child relationship, a court must find by clear and convincing evidence that (1) the parent has committed one of the enumerated statutory grounds for termination and (2) it is in the child's best interest to terminate the parent's rights. Tex. Fam. Code § 161.001(b). Clear and convincing evidence is "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." Id. § 101.007.
Factors commonly used in assessing the child's best interest include: (1) the child's desires; (2) the emotional and physical needs of the child now and in the future; (3) any 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 those individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This is not an exhaustive list, and other appropriate factors may be considered. Id. No one factor is controlling, and the facts of a case may mean that evidence of one factor is sufficient to support a finding that termination is in the children's best interests. In re A.P., 184 S.W.3d 410, 414 (Tex. App.-Dallas 2006, no pet.). The absence of some factors does not prevent the jury from finding by clear and convincing evidence that termination is in a child's best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). However, the best-interest standard does not permit termination merely because a child might be better off living elsewhere. In re D.M., 58 S.W.3d 801, 814 (Tex. App.-Fort Worth 2001, no pet.). The strong presumption that a child's best interest is served by keeping the child with his or her biological parents disappears when confronted with evidence to the contrary. In re A.I.G., 135 S.W.3d 687, 692 (Tex. App.- San Antonio 2003, no pet.).
In this context, "[t]he distinction between legal and factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be considered." In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). When evaluating legal sufficiency of the evidence, we consider whether, when the evidence is viewed in the light most favorable to the factfinder's determination and undisputed contrary evidence is considered, "a reasonable factfinder could form a firm belief or conviction that the finding was true." Id. at 631. When evaluating factual sufficiency of the evidence, we consider whether "in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true." Id. We must "provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses." In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); see also In re P.A.C., 498 S.W.3d 210, 214 (Tex. App.-Houston [14th Dist.] 2016, pet. denied).
However, "an appellate court's review must not be so rigorous that the only factfindings that could withstand review are those established beyond a reasonable doubt." In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). "While parental rights are of constitutional magnitude, they are not absolute." Id. "Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right." Id.
BACKGROUND
The trial court heard testimony from two witnesses from Child Protective Services (CPS) and the child's mother, K.H.
CPS investigator Gena Wiley testified that she investigated allegations of neglectful supervision for a drug-positive newborn child, J.H. She went to the hospital and spoke with K.H. two days after the child was born in May 2023. Wiley testified that K.H. admitted relapsing and using methamphetamine in January 2023 and marijuana in February 2023 knowingly while she was pregnant. She was at that time engaged in a CPS legal case regarding her three older children. Wiley testified that, because she was unable to find an "appropriate safety plan person," she proceeded to remove the child because K.H.'s drug use while pregnant caused concerns for the child's safety and well-being.
The Department's permanency specialist, Alexandra Smith, testified that she was assigned the CPS case regarding K.H.'s older children in August 2022. That case was wrapping up in May 2023 when J.H. was born. The child's hair follicle test was positive for marijuana. Smith testified that the older children were in the Department's permanent managing conservatorship and that permanent managing conservatorship would eventually be transferred to their caregiver. Smith testified that K.H. relinquished her rights to the youngest of the three older children. The concern that carried over from the first case was K.H.'s use of methamphetamine, and some of the service plan items applied to both cases. K.H. had been assigned in-patient drug rehabilitation but chose to do out-patient treatment. She engaged in individual counseling, completed a domestic-violence course, completed a psychological examination, and was participating in parent-child visits. She attended school and obtained a job in a nursing home. She was doing well.
Until the last few months before trial, K.H. had stable employment and stable housing and participated in drug tests. K.H. told Smith she had worked at a nursing home for seven months. She lost her job in December 2023, missed two drug tests in each of January and February 2024, and lost her housing by March 2024. K.H. did not tell Smith about the job loss. Smith referred K.H. to a shelter, but K.H. said she could not go back to the shelter. Smith did not know where K.H. was living. K.H. also did not go to counseling in January and February. Smith testified that K.H. said she relapsed on methamphetamine in January 2023 and stopped in February 2023.
In March 2024, she had a counseling session and, in the week of the trial, she tested positive for methamphetamine, cocaine, and marijuana. She was not required to do another domestic-violence course because she was no longer in the relationship that triggered the requirement. K.H. did not provide proof of attendance at meetings for Alcoholics Anonymous or Narcotics Anonymous. Smith said K.H. told her she would be willing to go to in-patient drug treatment.
Smith testified that K.H. had weekly visits with the child until December. Smith described the visits as good with no safety concerns. After a negative drug test, K.H. wanted unsupervised visits with her child but she did not have a valid driver's license or insurance. Smith told K.H. she needed to find reliable transportation or a person to transport her; instead, K.H. chose not to have any more visits until the Department would allow unsupervised visits. Nevertheless, she had a visit near the end of January with all four children. Smith testified that J.H. was fussy and did not appear to have a bond with K.H.
Smith testified that J.H. was doing great, thriving, and happy in her foster placement. She was developmentally on target. Smith described J.H. as very bonded to her foster mother and another little girl in that home. Smith testified that the foster home could be a permanent, adoptive home for J.H. Smith said she had no concerns about the foster home and its ability to meet J.H.'s needs.
Smith testified that, though K.H. had seven good months and three bad ones during J.H.'s life, Smith had concerns about K.H.'s ability to safely care for the child. Smith said that K.H. is from Pennsylvania and has no support system of close friends or local family members on whom she could rely for help. Smith was concerned by K.H.'s drug use and lack of employment and housing. Smith said K.H. could not provide for J.H.'s basic needs. Smith testified that termination of K.H.'s parental rights was in J.H.'s best interest because K.H. did not complete her service plan, had no stable employment, no stable housing, had current substance abuse issues, and could not meet J.H.'s basic needs.
K.H. asked for another chance to retain her parental rights. She testified that she did a better job of growing on this case than with her older children. She went to school and obtained a certification to satisfy CPS. She said she worked for the nursing home for about seven months, then was fired when a nursing-home resident filed a grievance after overhearing K.H. and another employee "exchange[] some words"; the nursing home fired both employees. She said she loved her job and getting fired put her "in a different head space." K.H. said she declined supervised visits because she was heartbroken; she had put in a lot of work and did not receive recognition. She testified that she did not like being alone and that, if she had more of her kids for more time, she would do better. She asked for assignment to in-patient rehab. She believed that in-patient rehab would help her get a job and a home.
K.H. agreed that it is in no child's best interest to be exposed to substance abuse, especially methamphetamine, and that her kids deserved better than such exposure. She agreed that the children should not have to wait around for her to decide to get her life in order. She also agreed that she had been offered help repeatedly, including in-patient rehab and a women's shelter, and that she had been kicked out of the women's shelter.
The court-appointed special advocate (CASA) supervisor stated in court that CASA supported termination of K.H.'s parental rights to J.H. as being in J.H.'s best interest. She said that the foster placement was willing to maintain a relationship between K.H. and her siblings from the other case.
The trial court found that termination of K.H.'s parental rights was warranted under Texas Family Code Section 161.001(b)(1)(E) (engaging in conduct or knowingly placing the child with persons who engaged in conduct which endangered the child's physical or emotional well-being) and (O) (failing to comply with a court-ordered service plan for return of the child). The trial court also found that termination was in J.H.'s best interest. See Tex. Fam. Code § 161.001(b)(2).
DISCUSSION
K.H. challenges only the finding that termination of her parental rights is in the child's best interest. Using the Holley factors as a guide, we will affirm. Holley, 544 S.W.2d at 372. A parent's addiction to illegal drugs, including use while a termination proceeding was pending, support the trial court's finding that termination of her parental rights was in the children's best interest. See In re J.L.B., 349 S.W.3d 836, 849 (Tex. App.-Texarkana 2011, no pet.); In re M.R., 243 S.W.3d 807, 821 (Tex. App.-Fort Worth 2007, no pet.). K.H.'s relapse into use of drugs (including methamphetamine) during the pendency of this case affects many of the Holley factors such as home stability and potential risks to the child going forward.
The infant K.H. could not speak about her desires, but Smith testified that when the child began recognizing faces she did not seem bonded with K.H. at a visit in January 2024. Smith also testified, however, that for the first several months visits went well and prompted no concerns for the child's safety.
CPS's employees both testified that K.H.'s behaviors caused concerns for J.H.'s safety in her care. Smith testified that K.H. had no job or home or ability to provide for J.H.'s basic needs, though she had done so for a few months. There was no evidence of any particular emotional and physical danger to the child other than general concern about instability and exposure to use of methamphetamine and other illegal drugs. Smith testified that K.H. did not present a danger to the children during supervised visits when she was employed, but K.H. admitted she had relapsed and that exposure to meth use is not good for a child. The evidence that J.H. was thriving in the foster placement, which implied that the foster placement had acceptable parenting abilities, was not disputed.
K.H. had taken advantage of some of the programs available to help her, but had declined others and had been kicked out of the women's shelter for reasons not disclosed on the record; thus it was not clear that the availability of the programs was evidence that they would assist K.H. K.H. hoped for another chance to prove that she could satisfy CPS's plan, while the only specific plan offered regarding the potential placement was possible adoption and maintenance of a relationship with older siblings also in CPS's program. K.H. had made progress toward stability that was apparently derailed when she lost her job, her home, and her sobriety. The stability of the foster home was implicit in Smith's testimony that the placement had been good for J.H., that she was happy there, that it could be an adoptive home, and that Smith had no concerns about the foster placement's ability to meet J.H.'s needs.
There was no testimony about any specific impropriety in the parent-child relationship between K.H. and J.H. aside from K.H.'s use of drugs while pregnant and her relapse into use of drugs while being monitored for, among other things, whether her parental rights should be terminated. The only excuse offered was that K.H.'s childhood had not been good, that she did not have a helpful support system nearby, and that she lacked individual coping skills when dealt a blow like losing a job she had worked to get and loved.
We conclude that clear and convincing evidence supports termination. Though K.H. had taken steps to improve the conditions she could offer J.H., she resumed using drugs while this cause was pending knowing that J.H. was removed from her care at least in part because she used drugs while pregnant with J.H.; she tested positive the week of her trial. Further K.H. chose not to visit the child for several weeks after her request for unsupervised visits was rejected. Finally, she had no job or home at the time of trial and no clear plan on how to provide for the child's needs. The risks of and obstacles to K.H.'s continued relationship contrasted with the current conditions and plans for J.H. with her foster family. This record, viewed in the required light, contains legally and factually sufficient evidence that the trial court could have formed a firm belief that termination of K.H.'s parental rights was in J.H.'s best interest. See In re J.L.B., 349 S.W.3d at 849; In re M.R., 243 S.W.3d at 821. We overrule K.H.'s sole issue on appeal.
CONCLUSION
We affirm the judgment.
Affirmed