Opinion
No. 10-03-040-CV
Opinion delivered and filed August 27, 2003
From the 66th District Court, Hill County, Texas, Trial Court # 37,856 A.
Affirmed
Duke E. Hooten, TEX.DEPT. Of Protective Regulatory Ser. Office of General Counsel Austin, TX, for appellee.
A. Lee Harris Attorney at Law, Whitney, TX, for ad litem.
Clyde Michael Sims, Attorney at Law, Hubbard, TX, attorney for other.
Before Justice Vance, Justice Gray, and Senior Justice Hill (Sitting by Assignment)
MEMORANDUM OPINION
In a bench trial, the court terminated Elizabeth Davis Garcia's parental rights with respect to her son J.W. Garcia presents a single issue in which she claims that the evidence is factually insufficient to support the court's finding that termination is in the best interest of J.W.
J.W. tested positive for cocaine at birth. The Department of Protective Regulatory Services ("DPRS") took custody of him two days after he was born. Dallas police arrested Garcia soon thereafter on a charge of delivery of a controlled substance. She was incarcerated from that point until trial. She testified that she would be released on mandatory supervision less than forty-five days after trial.
Garcia does not challenge the sufficiency of the evidence to support the court's finding that three statutory grounds exist to support termination. See Tex. Fam. Code. Ann. § 161.001(1)(D), (E), (R) (Vernon 2002). We discuss the evidence pertinent to the court's best interest finding hereinafter as we review the factors relevant to this finding.
The factual sufficiency standard for reviewing a finding that termination is in the best interest of the child "is whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that termination of the parent's rights would be in the child's best interest . . . ." In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). When we apply this standard, we "must maintain the respective constitutional roles of juries and appellate courts." Id. at 26. Thus, we must "give due deference to the jury's fact-finding function." Id. at 27.
The following are some of many pertinent factors which can guide a finder of fact in determining what is in the best interest of a child:
the desires of the child;
the emotional and physical needs of the child now and in the future;
the emotional and physical danger to the child now and in the future;
the parental abilities of the individuals seeking custody;
the programs available to assist these individuals to promote the best interest of the child;
the plans for the child by these individuals or by the agency seeking custody;
the stability of the home or proposed placement;
the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper; and any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); Swate v. Swate, 72 S.W.3d 763, 767 (Tex.App.-Waco 2002, pet. denied).
This list is not exhaustive. C.H., 89 S.W.3d at 27; Swate, 72 S.W.3d at 767. As the Supreme Court has observed:
[W]e have never held that these considerations are exhaustive, or that all such considerations must be proved as a condition precedent to parental termination. The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child. Other cases, however, will present more complex facts in which paltry evidence relevant to each consideration mentioned in Holley would not suffice to uphold the jury's finding that termination is required.
C.H., 89 S.W.3d at 27. With these considerations in mind, we review the evidence regarding each of the factors enumerated.
Desires of the Child
J.W. has not seen his mother since he was seven days old. He is not old enough to express his desires. Cf. Tex. Fam. Code. Ann. § 153.008 (Vernon 2002) (child 12 or older may choose managing conservator, subject to court approval).
Needs of the Child
A child's need for permanence is a paramount consideration in evaluating a child's physical and emotional needs. In re M.D.S., 1 S.W.3d 190, 200 (Tex.App.-Amarillo 1999, no pet.); Hann v. Tex. Dept. of Protective Reg. Servs., 969 S.W.2d 77, 83 (Tex.App.-El Paso 1998, pet. denied). DPRS has kept J.W. in the care of the same foster parents since DPRS took custody of him. Garcia on the other hand has been incarcerated at all pertinent times. Sheila Tatum, the DPRS caseworker assigned to J.W.'s case, testified that Garcia would require one or two years of training and counseling after her release from prison before DPRS would be willing to place J.W. back in her care. Under this scenario, J.W.'s future could remain uncertain until he reaches the age of four (or perhaps older) if Garcia's parental rights are not terminated.
Danger to the Child
A factfinder may look at a parent's endangerment of other children to determine that the parent would pose a danger in the future to the child the subject of the suit. See In re B.B., 971 S.W.2d 160, 169-70 (Tex.App.-Beaumont 1998, pet. denied); In re D.L.N., 958 S.W.2d 934, 939 (Tex.App.-Waco 1997, pet. denied). Two of Garcia's four children had cocaine in their systems at birth. She received no prenatal care when she was pregnant with J.W. Garcia testified that she has broken her addiction because of substance abuse programs offered during her incarceration. However, she left J.W.'s father during the pregnancy to obtain help for her addiction but instead continued to use drugs up to the day of J.W.'s birth. Thus, her past casts some doubt on her testimony that she has broken her addiction.
Parental Abilities
J.W. is Garcia's fourth child. Her three other children have lived with other relatives since their births. She voluntarily relinquished her parental rights to one of the three who tested positive for cocaine at birth. She testified that she was not ready to be a parent when these children were born.
Programs Available
DPRS is utilizing an intervention program to meet J.W.'s physical therapy needs. Garcia presented no evidence regarding the type of programs which would be available to her to assist in raising J.W. She participated in various programs in prison, including parenting training. However, her incarceration prevented her from taking advantage of many of the services provided by DPRS.
Plans for the Child
DPRS plans to place J.W. for adoption once Garcia's parental rights are terminated. His foster parents hope to adopt him, although they recognize that it is not a certainty.
Garcia intended to move to Victoria or Dallas after her release from prison. If she moved to Victoria, she would live with her uncle. If to Dallas, she would live with a lady whom she met through a jail ministry while in the county jail. She corresponded with this lady while in prison and was assured that J.W. and she could stay in her home after her release. Garcia ultimately intended to marry J.W.'s father and to live together as a family.
Stability of the Home
Garcia has not had a stable home for any extended period of time. She has moved from place to place, living in motels and with relatives.
Acts or Omissions of Parent Excuses Therefor
Garcia abused cocaine during her pregnancy with J.W. and with one of her other children. She did not seek prenatal care. She offered no excuse for her conduct other than her addiction.
Analysis
Garcia cites In re K.C.M. for the proposition that the evidence is factually insufficient to sustain the court's finding that termination is in J.W.'s best interest. 4 S.W.3d 392 (Tex.App. Houston [1st Dist.] 1999, pet. denied). In K.C.M., the mother had a similar drug addiction situation. She tested positive for marihuana at her child's birth. She continued to use marihuana and crack cocaine during the child's early life. She was arrested and convicted of possession of crack cocaine after the child was 18 months old. During her incarceration, the mother remained drug free and took advantage of numerous programs to better herself. She wrote letters to her DPRS caseworker inquiring about her child on a consistent basis during her incarceration. Id. at 396.
The First Court of Appeals concluded, "In light of the uncontroverted evidence of the progress Martin had made while in jail, a `firm belief or conviction' that the best interest of K.C.M. required termination of Martin's parental rights could not be fairly reached." Id. at 399.
However, K.C.M. may be distinguished for several reasons. The mother in that case had no other children. Thus, the factfinder had no parenting history to consider. Nor did the factfinder have evidence before it that the mother had endangered other children. In addition, that mother had custody of her child for more than a year before her arrest. Thus, she had established a relationship with the child.
Garcia on the other hand has not been a suitable parent for any of her children to date. Two of her children were born with cocaine in their systems. Because of Garcia's arrest, she has had virtually no contact with J.W. since his birth.
We agree with the observation of the Fourteenth Court of Appeals made in response to K.C.M.
[W]e believe a parent's recent turnaround and compliance with a family service plan are factors jurors should consider, but not determinative ones. If the facts involved show progress may take a very long time, or a child will remain at-risk nonetheless, reasonable jurors may conclude that termination is clearly and convincingly in the child's best interest.
In re M.G.D., 108 S.W.3d 508, 515 (Tex.App.-Houston [14th Dist.] 2003, pet. filed).
Conclusion
The evidence on most of the Holley factors supports the trial court's finding that termination is in J.W.'s best interest. The evidence on some of the factors is conflicting. Nevertheless, we must "give due deference to the [court's] fact-finding function." C.H., 89 S.W.3d at 27. Accordingly, we conclude that "on the entire record, a factfinder could reasonably form a firm conviction or belief that termination of the parent's rights would be in [J.W.'s] best interest." Id. at 28. Thus, we hold that Garcia's sole issue is without merit.
We affirm the judgment.