Opinion
NUMBER 13-15-00360-CV
01-07-2016
IN THE INTEREST OF C.G., A MINOR CHILD
On appeal from the County Court at Law No. 5 of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum Opinion by Justice Longoria
Appellant P.F. ("Mother") challenges the trial court's order terminating her parental rights to C.G., a minor. By three issues, Mother claims that the evidence was legally and factually insufficient to support the trial court's findings. We affirm.
I. BACKGROUND
C.G. is a nine-year-old child with mild autism and Fragile X Syndrome. As a result, C.G. has the approximate mental capacity of a two-year-old. Mother is the biological mother of C.G. and five other children: J.F. is age 26 and married; R.R. is twenty-two, also has Fragile X Syndrome, and currently lives with his maternal grandmother; A.C. is age twenty, has Fragile X Syndrome, and currently lives with Mother; S.M. is age eight and lives with her father (Mother's former husband); and an unnamed child, who was born with undescribed "special needs", that Mother gave up for adoption. At the time of relevant events, Mother's paramour was G.R. According to Mother, she and G.R. are now married but separated. C.G.'s father is unknown.
"Fragile X syndrome is a genetic condition that causes a range of developmental problems including learning disabilities and cognitive impairment. Usually, males are more severely affected by this disorder than females. . . . About one-third of individuals with fragile X syndrome have features of autism spectrum disorders." Fragile X Syndrome, GENETICS HOME REFERENCE, http://ghr.nlm.nih.gov/condition/fragile-x-syndrome.
On September 13, 2013, C.G.'s school contacted the Texas Department of Family and Protective Services ("the Department") because nobody was present to pick up C.G. from the bus stop. The bus driver took C.G. back to school. The Department picked C.G. up from school around 6:00 p.m. and attempted to contact his family with no success. Mother was in Nueces County Jail at the time and had been there for the previous eleven days. She was released from jail that day around 4:00 p.m. According to Mother, she believed her friend had already picked up C.G. from school. Mother made contact with the Department at 9:00 p.m. According to testimony from the Department, Mother asked if the Department would bring C.G. to the football game she was attending. Mother denies making such a statement; she claims she was at the football game to pick up her daughter and then called the Department to find out where to find C.G. When she arrived to pick up C.G., she was accompanied by her boyfriend, G.R. Mother and G.R. were both drug tested because they appeared to be under the influence. Mother's test came back positive for marijuana, amphetamine, and methamphetamine and G.R.'s test came back positive for methamphetamine.
Concerned for C.G.'s well-being, the Department created a parental safety placement of C.G. with his older brother, J.F., until Mother stopped using drugs. J.F. told caseworkers that he "practically raised [C.G.]" anyway because of Mother's drug addiction. J.F.'s wife also testified that she had helped take care of C.G. for months at a time in the past. Mother voluntarily agreed to have C.G. placed with J.F. and committed to monetarily support C.G. However, within a week, J.F. complained that Mother was not helping financially to take care of C.G. as she promised; regardless, he still agreed to watch C.G. until Mother stopped using drugs and created a safer home for C.G. The record reflects that Mother failed to take the steps necessary to take C.G. back: she continued using drugs and she continued her relationship with G.R., who also used drugs and, according to Mother's and J.F.'s testimony, was a source of domestic violence. In the meantime, J.F. had no legal authority to make decisions for C.G. regarding health and school. In December of 2013, the Department filed a petition for protection and the court set a hearing for January. On January 2, 2014, the Department was given temporary managing conservatorship of C.G. after the hearing was held. Further, the trial court ordered: (1) Mother to attend counseling and drug assessments; (2) that C.G. remain with J.F.; (3) Mother to pay child support to help support C.G.; and (4) Mother to submit to drug tests. On February 25, 2014, a family service plan was created to help Mother achieve the goals of the January court order and establish an environment suitable to properly nurture C.G. Some of the goals of the family service plan were for Mother to: demonstrate that she can put C.G.'s needs above her own; accept responsibility as a parent; and demonstrate that she is willing to change. To that end, the family service plan required Mother to: (1) submit to random drug screens at the Department's request; (2) maintain regular contact with the Department; (3) maintain appropriate housing free of domestic violence and drugs; (4) contact AS&J Counseling Services for individual counseling; (5) contact the Department to arrange weekly supervised visits with C.G.; and (6) pay $100 per month in child support for C.G. Mother agreed to the plan and signed it.
Mother testified that G.R. had punched a hole in the wall and had been violent around C.G.
On February 27, 2014, Mother submitted to a hair follicle drug test, which tested positive for marijuana and methamphetamines. On March 3, 2014, a status hearing was held, in which the court approved the family service plan and ordered C.G. to remain with J.F. and his wife indefinitely. On April 22, 2014, J.F. informed the Department that he and his wife could no longer take care of C.G. Between work and school, the couple felt they could no longer provide the special care that C.G. needed. On May 9, C.G. was transported to a foster home. The foster parents have been taking care of special needs children since 1998. At the time they accepted C.G. into their home, they were also taking care of five other special needs children. The attorney ad litem for C.G. made contact with C.G. several months after he was placed with the foster family and reported to the court that: (1) the foster parents had taken C.G. to the optometrist, pediatrician, dentist, neurologist, and therapist regularly; (2) C.G. was now taking medication for ADHD; (3) C.G. seemed to get along well with the other children in the home and appeared happy; (4) C.G. now called his foster dad "papa"; (5) in his opinion, Mother should not be allowed to visit C.G. again because it was more harmful and disruptive than helpful; and (6) Mother was still not complying with the family service plan. Thus, the attorney ad litem suggested that it was best for C.G. to stay with his foster parents. The foster mom also told the Department that she did not believe it was good for C.G. to visit Mother. On one occasion, Mother told C.G. over the telephone that he was going to go back and live with her soon. C.G. was "visibly upset" and became angry. After that, C.G. would hang up on his Mother after talking for more than a minute with her.
On June 30, 2014, a permanency hearing was held to determine the long-term plan for C.G. The Department informed the trial court that Mother was still not complying with the service plan and suggested that C.G. continue to live with his foster parents. Mother submitted certificates to the Department to indicate that she had attended drug rehabilitation counseling. The Department acknowledged that Mother attended several counseling courses but expressed concerns that Mother was not truly learning anything from the counseling because Mother was still testing positive for marijuana and methamphetamines. Furthermore, the Department noted that Mother was not seeking proper counseling. For instance, Mother identified her pastor as her counselor to satisfy the family service plan; however, the pastor responded to the Department's inquiry by stating that he "felt like he was giving her spiritual advice, but not necessarily any type of counseling service." In January 2015, Mother tested positive again for methamphetamines and, in May 2015, Mother tested positive for marijuana. In addition, the Department was concerned that Mother never reenrolled in a drug treatment program after testing positive.
On June 25, 2015, the trial court commenced a bench trial to determine the best plan for C.G. Prior to this hearing, the Department's goal had been to protect C.G. and ultimately reunify him with his Mother once she followed the family service plans. However, due to Mother's consistent failure to improve and follow the family service plan, the Department argued at the trial that termination of Mother's parental rights would be in C.G.'s best interest.
Jeffrey Moen, C.G.'s therapist, testified that C.G. needs a very "structured environment." Moen has attempted to ask C.G. his feelings about the future and whether he wants to go home; however, due to C.G.'s mental capacity, Moen testified that it is hard to decipher how C.G. feels about going home or if C.G. even understands what going home means. Moen further asserted that sometimes C.G. will respond by saying, "Yes, I want to go home with my mom" but sometimes C.G. will say, "No, I'm okay here." Moen further testified that anyone suffering from a severe, long-term drug addiction would have an extremely difficult time providing the kind of environment that C.G. needs. Specifically, he stated that anybody taking methamphetamines and marijuana would have a very hard time taking care of C.G. He added that he did not believe it was in C.G.'s best interests to live with someone suffering from a severe drug addiction. Lastly, Moen testified that he does not believe C.G. will ever develop to a point where he can live on his own; thus he will need specialized care and attention for the rest of his life.
Leah Rea, Mother's personal therapist from Coastal Community Center, also testified at the bench trial. Rea asserted that she had been counseling Mother for the last eighteen to twenty-four months. Mother went to Rea once a month for eighty minutes for help with her anxiety and depression. Rea testified that a majority of their sessions focused on stress and anxiety related to Mother's ex-husband and not being able to visit her "children." Upon questioning, Rea specified that by "children" she meant S.M., Mother's youngest daughter. Over the course of two years, Mother only mentioned C.G. once; the sessions focused almost exclusively on the stress of not being able to visit S.M. more frequently and dealing with her ex-husband. Now S.M. spends every other weekend with Mother, but at the time of counseling the father did not support visitation with Mother. Not seeing S.M. caused Mother considerable anxiety, but Mother never seemed to express much anxiety or stress over not seeing C.G. more often.
Elizabeth Morales, one of the Department case workers, also testified at the trial; she was the caseworker that drafted the family service plan for Mother in February 2014. Morales testified that Mother was not complying with the family service plan in that she: (1) failed to maintain regular contact with the Department; (2) missed some of the drug screenings; (3) failed to maintain adequate housing free from drugs and domestic violence; (4) failed to participate in weekly visitations with C.G.; (5) failed to complete appropriate personal therapy; and (6) failed to pay child support. Morales claimed that Mother never visited C.G. a single time over the last fifteen months that he had been in foster care. She stated that because C.G. has Fragile X Syndrome, his chances of finding a "forever home" are relatively slim. However, C.G.'s current foster parents had adopted several children like C.G. in the past and had shown interest in adopting C.G. Therefore, Morales claimed that C.G.'s best chance of finding a permanent, stable home was to have Mother's parental rights terminated so that C.G. could be adopted by another family, ideally his current foster parents. The trial court terminated Mother's parental rights as to C.G. and ordered C.G. to stay with his current foster family. This appeal followed.
II. PARENTAL TERMINATION
In three issues, Mother argues that the evidence is legally and factually insufficient to support the trial court's findings that: (1) Mother knowingly placed or knowingly allowed C.G. to remain in conditions which endangered him; (2) Mother was engaged in conduct or knowingly placed C.G. with people who engaged in conduct which endangered him; and (3) terminating the parent-child relationship between C.G. and Mother is in C.G.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (b)(2) (West, Westlaw through 2015 R.S.).
A. Standard of Review
"Parental rights may be terminated only upon proof of clear and convincing evidence that the parent has committed an act prohibited by section 161.001(1) of the Texas Family Code, and that termination is in the best interest of the child." In re E.A.G., 373 S.W.3d 129, 140 (Tex. App.—San Antonio 2012, pet. denied). Clear and convincing evidence is "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 (West, Westlaw through 2015 R.S.).
When the legal sufficiency of the evidence is challenged, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief that its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Accordingly, we assume the finder of fact resolved all disputed facts in favor of its finding, if a reasonable fact-finder could do so, and likewise we disregard all evidence that a reasonable factfinder could have disbelieved. Id. When the factual sufficiency is challenged in a parental termination case, then we also consider the conflicting evidence. Id. If the disputed evidence is so "significant" that a reasonable factfinder could not form a firm belief of the findings supporting the verdict, then the evidence is factually insufficient. Id.
B. Statutory Violations
In the present case, the trial court declared in its order that "it is in the best interest of [C.G.] to terminate the parental rights of [Mother] pursuant to Tex. Fam. Code 161.001 D and E." Subsection D permits termination if a parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger[ed] the physical or emotional well-being of the child," while subsection E permits termination if a parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the child." TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). Both subsections require endangerment—that is, "jeopardizing the child's physical or emotional well-being." Interest of R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied). However, subsections D and E differ as to the cause of the endangerment. See id. Subsection D requires that the endangerment be the direct result of the child's environment and only an indirect result of the parental conduct; on the other hand, subsection E requires that the endangerment be the direct result of the parental conduct. See id. Subsection D permits termination based on a single act or omission of the parent whereas subsection E requires a "course of conduct" from the parent that endangers the child. Id. "Subsection D thus permits a less than direct relationship between the parental conduct and the endangerment but it also requires an additional factor—an endangering environment—to be proved, while subsection E requires a direct relationship but this relationship, standing alone, justifies termination." Id. "Drug addiction and its effect on a parent's life and ability to parent may establish an endangering course of conduct as well." In re J.T.G., 121 S.W.3d 117, 125-26 (Tex. App.—Fort Worth 2003, no pet.).
The trial court's subsection D and E findings are adequately supported by the evidence in the record. The record shows that Mother has been struggling with addiction for decades and that Mother was in jail for drug possession when the Department became involved. The day Mother was released from jail, C.G. was left alone after school with nobody to pick him up. Mother testified that she had made arrangements for C.G. to be picked up by an unidentified friend, but due to a "miscommunication," nobody picked up C.G. When Mother finally picked him up at 10:00 p.m., Mother appeared intoxicated and tested positive for marijuana, amphetamines, and methamphetamines on the oral drug test. Mother later admitted to using drugs after she was released from jail and before picking up C.G. Mother's paramour, G.R., was also a source of drug use and domestic violence, according to both Mother and the Department. Mother nevertheless maintained a close relationship with G.R. for several years.
Over the next two years, Mother failed to comply with the family service plan by continually testing positive on subsequent drug tests, failing to maintain contact with the Department, failing to attend appropriate therapy, failing to maintain adequate housing free of drugs and violence, failing to pay child support, and failing to participate in weekly visits with C.G. Mother still tested positive for drugs as recently as May of 2015.
Mother claims that she did pay child support and that the Department just was not aware of it. We assume the court resolved the conflict in the evidence in favor of the State. See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
Our review of the record convinces us that the evidence is sufficient to convince a reasonable factfinder to form a firm belief that Mother's conduct, both directly and indirectly, endangered C.G.'s physical and emotional well-being. See In re J.T.G., 121 S.W.3d at 125; Interest of R.D., 955 S.W.2d at 367; TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). We overrule Mother's first and second issues.
C. Best Interest
In reviewing a best interest finding, we consider, among other evidence, the non-exclusive Holley factors. See In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)). These factors include: (1) the child's desires; (2) the child's emotional and physical needs 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 the individuals seeking custody to promote the best interest of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. Id. However, absent a showing of sufficient maturity, a child's preference is not considered. In re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied). When a child is too young to express his desires, the factfinder may consider that the child has bonded with the foster family, is well cared for by them, and has spent minimal time with a parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Mother claims on appeal that she is in a much better position now to take care of the child than she was two years ago because she has overcome those issues that plagued her before. In addition, Mother avers that her older daughter will move in with her to help take care of C.G. However, Mother has failed to comply with several prongs of the family service plan and has continued to fail drug tests within recent months. The State admitted that it received certificates from Mother indicating that she had completed drug rehabilitation clinics but it is undisputed that she continued to use drugs even after the counseling. Furthermore, much of her counseling was not truly drug treatment therapy, as the court ordered, because the pastor admitted he did not feel qualified to give personal counseling. Mother had been living with G.R. for years; G.R. also used drugs and was a source of domestic violence, according to Mother and J.F. Mother claims that she separated from G.R. in March of 2015, but they are still married and have not filed any divorce papers.
This is not Mother's first interaction with the Department. Before the current incident, the Department has received thirteen reports concerning Mother, G.R., and the children. The reports alleged various concerns, including physical neglect, neglectful supervision, abandonment, physical abuse, medical abuse, and sexual abuse. Several of the cases were "ruled out with no significant factors," many of the cases were "ruled out with significant factors controlled." One noteworthy case was on December 10, 2005, when the Department received a report alleging neglectful supervision. C.G. was reportedly found with a "black eye, face down in the toilet" and had nearly drowned. The report further alleged that the children "did not eat well." Due to these factors and "deplorable home conditions," all of her children were temporarily placed in foster care. After several weeks, they returned to live with Mother. This history with the Department can be taken into account in considering the best interest of the child. See In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)). --------
Morales also testified that she was concerned about Mother's ability to effectively take care of C.G. R.R., Mother's other son with Fragile X, lives with and is primarily taken care of by his maternal grandmother, and Mother plans to have C.G. taken care of by her oldest daughter, A.C.; the Department argued that this indicates Mother's inability to take care of children like C.G. because Mother constantly relies on other people to take care of her children. Also, because J.F. had noted earlier that he was the one who basically raised C.G. because of Mother's drug addiction, the Department claimed that Mother was not demonstrating the capacity to care for and raise children with special needs like C.G. Morales testified that Mother did not seem to care enough about C.G. to try to visit him, especially since Mother was actively engaged in visiting her daughter, S.M. In addition, Mother frequently mentioned her anxiety over not seeing S.M. more often to her therapist but hardly mentioned C.G. at all. Mother currently works as a home-health provider for an elderly woman seventeen and a half hours a week, making $8.50 an hour. However, G.R. pays Mother's rent and visits Mother, even though they are separated. The Department believes Mother will continue to allow C.G. to be around G.R., which is not in C.G.'s best interests, given his history of drug use and domestic violence.
Moen testified that C.G.'s desires are hard to take into consideration given his mental capacity and lack of maturity. But, according to testimony, C.G. has already been living with his current foster parents for approximately two years, has bonded well with them, and has spent minimal time with Mother. See In re J.D., 436 S.W.3d at 118. Mother has hardly seen C.G. in over two years despite being given the opportunity to visit much more frequently. Morales claimed that Mother has no "real relationship" with C.G. Mother claimed at the trial that she had difficulty staying in touch with the Department and contacting her case worker to arrange visits with C.G.; however, even though Mother was present at every single hearing in this case over the course of years, she never mentioned that she had any difficulty in contacting her caseworker or arranging visits. Moen testified that C.G. needs a stable, consistent environment that would be hard for someone addicted to drugs to provide. Morales testified that C.G.'s current foster parents might be his best chance at finding a permanent home; as children like C.G. grow older, it becomes harder and harder to find a permanent home. Furthermore, the foster parents already have substantial experience with special needs children. And the attorney ad litem and all the caseworkers testified that his current foster family is stable, loving, and that they offer C.G. a consistent, nurturing environment, one that Mother has not shown she could provide. Mother did not even visit C.G. for over fifteen months.
In summary, the evidence amply supported the trial court's finding that it is in C.G.'s best interest to terminate Mother's parental rights. C.G. is too young and immature to take his opinion into account, but testimony indicated that C.G. needs a stable environment with love and attention to C.G.'s physical, mental, and medical needs. Testimony asserted that Mother, with her drug addiction, would have difficulty providing such an environment. Mother has failed to demonstrate appropriate parental skills necessary to take care of special needs children like C.G. There are programs available to help Mother but she has not fully taken advantage of them. The foster home C.G. is currently in is very stable and consistent and has taken care of C.G.'s physical and medical needs. Mother's actions over the course of the case reflect that she has "no real relationship" with C.G. and is not overly concerned with his needs. While we encourage Mother in her efforts to improve her life, the trial court's best interest finding is supported by clear and convincing evidence that is legally and factually sufficient. See In re E.N.C., 384 S.W.3d at 807. We overrule Mother's third issue.
III. CONCLUSION
We affirm the trial court's judgment.
NORA L. LONGORIA,
Justice Delivered and filed the 7th day of January, 2016.