Opinion
NO. 03-17-00773-CV
03-16-2018
C. D. and K. G., Appellants v. Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 278,946-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING
MEMORANDUM OPINION
After a consolidated final hearing and de novo final hearing, the trial court rendered judgment terminating the parental rights of Kevin, the father of Kendrick; Cathy, the mother of Kendrick, Lucy, Lana, Lewis, Lonnie, and Lisa; and Landon, the biological father of Lucy, Lana, Lewis, Lonnie, and Lisa. Kevin and Cathy separately appealed from the judgment. In four issues, Kevin challenges the legal and factual sufficiency of the evidence supporting the grounds for termination and the trial court's best-interest finding. In one issue, Cathy challenges the legal and factual sufficiency of the evidence supporting the trial court's best-interest finding. We will affirm the judgment of the trial court.
For clarity and confidentiality, we refer to the parties and the children by fictitious names. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
Landon did not appeal, so we do not review the judgment with respect to termination of his rights.
BACKGROUND
On July 16, 2015, the Texas Department of Family and Protective Services (the Department) received a report of medical neglect concerning three-month-old Lonnie. An investigation revealed the following: Lonnie was born prematurely and had spent a month in NICU. Since his release, he had missed several medical appointments to treat a serious eye condition that could render him blind without proper care. Landon informed the Department that he did not believe that Lonnie had a medical condition and indicated that he was going to move his family to California because he was "tired of CPS messing with his family." Cathy was subject to court-ordered drug testing and had tested positive for cocaine the same day the Department received the medical-neglect report. Cathy and Landon had an extensive history with Child Protective Services in Illinois arising from numerous instances of severe domestic violence and child abuse. They were also involved in a Family Based Safety Services case in Texas that had been initiated on January 2, 2016, again due to domestic violence and child abuse, and had violated various provisions of the court-ordered service plan.
On July 17, 2015, the Department filed a petition for possession and temporary managing conservatorship of Kendrick, Lucy, Lana, Lewis, and Lonnie. On September 14, 2015, the trial court entered emergency temporary orders appointing the Department temporary managing conservator of the children. On April 14, 2016, the Department amended its petition to include Lisa, who was born to Cathy and Kevin a few weeks earlier. The petition alleged that Landon had physically assaulted Cathy when she was six months pregnant with Lisa and that Cathy had attempted to conceal Lisa's birth from the Department and abscond with her. On May 2, 2016, the trial court entered emergency temporary orders appointing the Department temporary managing conservator of Lisa.
Kevin was incarcerated when the Department initiated the present case and was not released from prison until June 2016. To permit Kevin additional time to participate in services, and with the Department's agreement, the trial court severed the case as to Kendrick and granted Kevin a continuance of the final hearing. The Department proceeded with their case as to the other four children. Following a final hearing, the associate judge rendered an order terminating Cathy's parental rights to those four children. See Tex. Fam. Code § 201.001. Cathy moved for a de novo hearing, and an initial hearing was set for October 4, 2016. See id. § 201.015. At that setting, the case involving Kendrick was again consolidated with the case involving the other four children, to which the parties did not object. The last setting of the final hearing occurred on September 26, 2017, after which the trial court terminated the parental rights of Kevin, Cathy, and Landon. Kevin and Cathy appealed separately.
Because the hearing constituted a final hearing as to Kendrick and a de novo final hearing as to the other children, it was designated a "De Novo Final Hearing and Final Hearing."
DISCUSSION
I. Statutory grounds supporting termination
In his first three issues, Kevin contends that the evidence is legally and factually insufficient to support the grounds for termination cited in the trial court's judgment.
A. Standard of review
A trial court may terminate a person's parental rights if clear and convincing evidence shows that (1) the person has committed conduct that constitutes a statutory ground for termination and (2) termination of the person's parent rights is in the child's best interest. See Tex. Fam. Code §§ 161.001, .206(a); In re S.M.R.., 434 S.W.3d 576, 580 (Tex. 2014). In reviewing the legal sufficiency of the evidence in a termination case, we consider all of the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding is true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In reviewing the factual sufficiency of the evidence, we perform "an exacting review of the entire record" and must uphold a finding unless 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 that the finding is true. Id.; see also In re A.B., 437 S.W.3d 498, 500 (Tex. 2014).
B. Endangerment under subsection (E)
Kevin's first issue challenges the sufficiency of the evidence supporting the trial court's finding that he "engaged in conduct and knowingly placed the child with persons who engaged in conduct which endangers the physical and emotional well-being of the child" as provided in Texas Family Code subsection 161.001(b)(1)(E). See Tex. Fam. Code § 161.001(b)(1)(E).
Under subsection (E), the Department must prove that a parent engaged in a voluntary, deliberate, and conscious course of conduct that endangers the child's physical and emotional well-being. In re J.W., 152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied). In reviewing an endangerment finding under that subsection, a reviewing court considers the parent's acts and omissions both before and after the child's birth. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). To constitute endangerment, the parent's conduct need not be directed at the child. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). Conduct may endanger a child even if it does not cause the child to suffer actual injury. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Conduct that subjects a child to a life of uncertainty and instability generally endangers the physical and emotional well-being of a child. In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).
The fact that a parent has been imprisoned is relevant to an endangerment determination. Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Imprisonment alone will not constitute conduct that endangers the emotional or physical well-being of a child. Id. But if the criminal activity that results in a parent's imprisonment reflects a voluntary, deliberate, and conscious course of conduct, it qualifies as conduct that endangers the child. Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no writ). Furthermore, conduct that routinely subjects a child to the probability that the child will be left alone because a parent is jailed endangers both the physical and emotional well-being of the child. Walker v. Texas Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Evidence of a parent's inconsistent participation in visitation with the children also supports a finding that he engaged in conduct that endangered the children's physical or emotional well-being. See In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (characterizing parent's absence as creating an "emotional vacuum" in child's life); In re S.I.H., No. 02-11-00489-CV, 2012 WL 858643, at *6 (Tex. App.—Fort Worth Mar. 15, 2012, no pet.) (mem. op.) (noting evidence presented "that children thrive on consistency" and inconsistent visitation and lack of parental contact "can be very damaging"). A prolonged history of unemployment and financial instability are also relevant to an endangerment determination by indicating an inability to provide for the child. See In re M.N.G., 147 S.W.3d 521, 538-39 (Tex. App .—Fort Worth 2004, pet. denied); In re H.N.H., No. 02-11-00141-CV, 2012 WL 117861, at *25 (Tex. App.—Fort Worth Jan. 12, 2012, no pet.) (mem. op.).
C. The evidence supports termination on the endangerment ground
The trial court heard evidence that Kevin was incarcerated in an Illinois federal prison for most of Kendrick's life. At the time Kendrick was born, and continuing through the first two years of Kendrick's life, Kevin participated in a substantial drug enterprise until his arrest in April 2010. Kevin testified regarding the offense at the final hearing. He confirmed that, every week, he would receive an eighth of a kilogram of powder cocaine, which he would convert into crack cocaine and then distribute to other individuals for sale. In total, he was involved in the distribution of 1.5 to 4.5 kilograms of crack cocaine. He pled guilty to a federal charge of conspiracy to distribute crack cocaine and received a 20-year sentence. He ultimately received a sentence reduction and was released in 2016. Kendrick was nine years old at that time. Furthermore, prior to his participation in that drug enterprise, Kevin had been incarcerated for two years on a separate drug-related offense. This criminal activity reflects a voluntary, deliberate, and conscious course of conduct. As such, it qualifies as conduct that endangers the child. See Avery, 963 S.W.2d at 552-53 (upholding termination where parent's criminal record showed a pattern of criminal activity beginning before and continuing after the child's birth). His repeat offenses also indicate a threat that Kendrick will be left alone because Kevin is jailed, further endangering Kendrick's well-being. See Walker, 312 S.W.3d at 617. In sum, Kevin's criminal history supports the trial court's finding that he had engaged in a deliberate course of conduct that endangered Kendrick under Texas Family Code subsection 161.001(b)(1)(E). See id.; Avery, 963 S.W.2d at 552-53.
The trial court also heard evidence that Kevin endangered Kendrick's physical or emotional well-being by failing to make efforts to establish a relationship with Kendrick prior to or during the present proceedings. Although he was incarcerated for the first year of the Department's case, Kevin was released to a halfway house in June 2016 and was fully released in September 2016. Nevertheless, at the time of the final hearing in September 2017, he still had not seen Kendrick since April 2010, had made no efforts to visit him or contact the Department, and had had virtually no contact with him. See In re U.P., 105 S.W.3d at 236. He had also moved multiple times following his release and had paid little to no child support despite an order that he do so. See In re M.N.G., 147 S.W.3d at 538-39.
Based on our review of the entire record, we conclude that the evidence is legally and factually sufficient to support the trial court's finding that Kevin engaged in conduct that endangered Kendrick's physical or emotional well-being. See Tex. Fam. Code § 161.001(b)(1)(E). Because we conclude that the evidence is legally and factually sufficient to support that statutory ground for termination, we need not address the other statutory grounds for termination that Kevin challenges in his second and third issues. See Tex. R. App. P. 47.1 (requiring court of appeals to hand down written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of appeal); see also In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (holding that sufficient proof of one statutory termination ground, with finding that termination is in child's best interest, is sufficient to support termination order). We overrule Kevin's first issue.
II. Best-interest findings
Kevin's fourth issue and Cathy's sole issue challenge the sufficiency of the evidence supporting the trial court's best-interest findings.
A. Holley factors
In addition to proving a predicate act or omission harmful to the child, the Department must also prove by clear and convincing evidence that termination is in the child's best interest. See Tex. Fam. Code § 161.001(b)(2); In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). In a termination case, the best interest of the child is assessed using a non-exhaustive list of factors: (1) the child's wishes, (2) the child's emotional and physical needs now and in the future, (3) emotional or physical danger to the child now and in the future, (4) the parenting abilities of the parties seeking custody, (5) programs available to help those parties, (6) plans for the child by the parties seeking custody, (7) the stability of the proposed placement, (8) the acts or omissions of the parent which indicate that the existing parent-child relationship is not proper, and (9) any excuses for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The Department need not prove all of the Holley factors as a condition precedent to termination, and the absence of some factors does not bar the factfinder from determining that termination is in the child's best interest. In re C.H., 89 S.W.3d at 27. Evidence presented to establish a predicate statutory ground for termination by also be probative of a child's best interest. Id. at 28. The need for permanence is the paramount consideration when determining the children's present and future physical and emotional needs. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
B. The evidence supports the trial court's finding that termination of Kevin's parental rights is in the child's best interest
We conclude that the Holley factors support the trial court's determination that the termination of Kevin's parental rights is in Kendrick's best interest. As previously discussed, the trial court could have inferred from Kevin's criminal history that he would be unable to provide a safe and stable home for Kendrick in the future. The court could have also inferred an improper parent-child relationship from Kevin's failure to make efforts to (1) visit or contact Kendrick, (2) pay child support, or (3) participate in services, despite having been granted an extension of time to do so. The trial court could have also concluded from that evidence that Kevin would be unable or unwilling to meet Kendrick's needs. There was also evidence that Kendrick desires to remain in his foster home with his sister, Lucy, and that the Department's plan is that the home become the children's permanent placement. By contrast, the case worker testified that Kendrick had said he "didn't really even remember his dad," whom he had not seen since he was two years old.
Whether viewed through the lens of legal or factual sufficiency, we cannot conclude that the evidence was so weak or lacking that the trial court could not have reasonably reached a firm belief or conviction that termination of Kevin's parental rights was in Kendrick's best interest. See In re J.F.C., 96 S.W.3d at 266. Accordingly, we overrule Kevin's fourth issue.
C. The evidence supports the trial court's finding that termination of Cathy's parental rights is in the child's best interest
We further conclude that the Holley factors support the trial court's determination that the termination of Cathy's parental rights is in all of the children's best interest. The trial court heard evidence that she placed the children in conditions that endangered their well-being by remaining in a relationship and residing with Landon. See In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.) (holding that best-interest finding was supported by "overwhelming and undisputed evidence showing that the parents placed or allowed the child to remain in conditions, and engaged in conduct or placed the child with persons who engaged in conduct, which endangers the physical and emotional well-being of the child"). It shows that Landon has a history of physical and sexual abuse against the children, including infliction of burns, cuts, bruises, oral injuries, and sexual molestation. The violence and abuse stem back to at least 2011 and resulted in multiple criminal convictions, as well as involvement by Illinois social services. Two of Cathy's other children live with a grandmother in California due to violence and abuse in the home.
There was also evidence of an extensive history of severe domestic abuse by Landon against Cathy, including the use of weapons, that resulted in black eyes, broken bones, burns, choking, and other injuries, much of which the children witnessed. See In re A.M., 495 S.W.3d 573, 581 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (relying in part on "history of assaultive conduct between the mother and father" in affirming best-interest finding). Landon committed one of the assaults for which he was convicted when Cathy was pregnant with Lisa. The children's guardian ad litem agreed that the violence and abuse that the investigation revealed was "almost shocking." Because the record contains evidence that Cathy continuously subjected her children to extreme abuse and violence by failing to terminate her relationship with Landon and take measures to protect them and herself from him, it supports the trial court's finding that termination of her parental rights is in the children's best interest.
Cathy argues that the basis of termination of her parental rights was her relationship with Landon, which she claims she has ended, citing her testimony at the initial setting of the de novo final hearing. However, the trial court expressly found that Cathy's testimony was not credible. And the record contains substantial evidence that controverts her testimony: the trial court heard evidence that she was continuing to reside with Landon and had repeatedly attempted to conceal that fact from the Department. There was also evidence that Cathy and Landon had been in a relationship since 2011, in which she remained despite numerous instances of severe violence and abuse against her and her children. See May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied) (evidence of past misconduct or neglect is permissible as inference that parent's future conduct may be measured by their past conduct). We must defer to the trial court's evaluation of Cathy's credibility and its resolution of any evidentiary conflicts because they are supported by the record. See Harris v. Texas Dep't of Family & Protective Servs., 228 S.W.3d 819, 822-23 (Tex. App.—Austin 2007, no pet.).
Furthermore, in addition to Cathy's persistent exposure of her children to abuse and violence, the trial court heard other evidence that supports its best-interest finding. First, there was evidence that Cathy failed to fully cooperate with the Department and that she made efforts to impede the Department's intervention and investigation. As previously discussed, there was evidence that she repeatedly attempted to conceal her relationship with Landon from the Department after indicating that she had terminated contact with him. There was also evidence that she had attempted to conceal the birth of Lisa from the Department in violation of an order that she disclose that information and had made efforts to abscond with her.
Second, the trial court heard evidence that Cathy was using drugs while the children were in her care. She tested positive for cocaine while on probation for interfering with public duties during an incident in which her brother physically assaulted one of the children. That incident occurred on the same day that the Department received the report of medical neglect regarding three-month-old Lonnie.
Third, the trial court heard evidence that Cathy failed to comply with the court-ordered family-service plan. Among the various provisions with which she had failed to comply was a requirement that she submit to routine drug testing, which permitted an inference that she was continuing to use drugs. See In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ("A factfinder reasonably could infer that [mother]'s failure to submit to the court-ordered drug screening indicated she was avoiding testing because she was using drugs."). There was also evidence that she failed to visit or contact the children or inquire as to their well-being after the final hearing in May 2016 or to pay child support. The record further shows that she failed to attend the de novo hearing in September 2017 without notice or explanation.
Finally, the trial court heard evidence that Cathy is unemployed, has limited financial resources, and has failed to demonstrate her willingness or ability to provide a safe, stable home for her children. By contrast, the guardian ad litem testified that the children are all "doing really well" in their current placements. She testified that the Department plans for the current placements to become the children's permanent homes.
Whether viewed through the lens of legal or factual sufficiency, we cannot conclude that the evidence was so weak or lacking that the trial court could not have reached a firm belief or conviction that termination of Cathy's parental rights was in the children's best interest. See In re J.F.C., 96 S.W.3d at 266. Accordingly, we overrule her sole issue on appeal.
CONCLUSION
We affirm the judgment of the trial court.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: March 16, 2018