Opinion
NO. 01-17-00209-CV
07-11-2017
IN THE INTEREST OF D.D.W., A CHILD
On Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2016-00673J
MEMORANDUM OPINION
D.W. appeals from the trial court's judgment terminating his parental rights to his daughter, D.D.W. In three issues, D.W. contends that the evidence is (1) legally and factually insufficient to support the termination finding under Texas Family Code section 161.001(b)(1)(D) and factually insufficient to support the termination finding under section 161.001(b)(1)(E); (2) legally and factually insufficient to support the termination finding under section 161.001(b)(1)(N); and (3) factually insufficient to support the termination finding under section 161.001(b)(1)(O). We affirm.
Background
D.D.W. was born on January 28, 2016. Her birth certificate lists D.W. as her father, and a DNA test subsequently confirmed his paternity.
On January 28, 2016, the Department of Family and Protective Services received a referral of neglectful supervision of D.D.W. by her mother, D.E.S., who tested positive for cocaine and marijuana at D.D.W.'s birth. When a hospital social worker met with D.E.S. to discuss her positive drug screen, D.E.S. admitted that she had been smoking marijuana during the pregnancy and used cocaine in the two weeks prior to D.D.W.'s birth.
Hospital notes reflect D.E.S.'s pre- and post-operative diagnosis as "intrauterine pregnancy, poor prenatal care, positive syphilis, positive cocaine, positive marijuana, recurrent intoxication suspected."
On January 29, 2016, the Department received a second referral alleging physical abuse of D.D.W. by D.E.S. after D.D.W.'s urine tested positive for cocaine. Following an investigation, the Department filed its original petition for conservatorship and termination of parental rights, and took emergency custody of D.D.W. on February 4, 2016.
The record reflects that D.E.S.'s parental rights to two other children were terminated in 2011 and 2013, and, in 2015, she gave birth to a stillborn child.
On February 18, 2016, the trial court held a full adversary hearing at which D.E.S. and D.W. appeared in person and through their attorneys. D.W. testified that he was still in a relationship with D.E.S. and that he would work the services necessary to be awarded custody of D.D.W. At the conclusion of the hearing, the court ordered a drug test for D.W. The court continued the Department's temporary managing conservatorship of D.D.W. and set a status hearing for April 5, 2016. D.W.'s court-ordered drug screen tested positive for cocaine and marijuana.
The Department subsequently created a family service plan for D.W. which required him to complete several tasks and services, including submitting to random drug testing; providing his caseworker with an updated means of contact and forty-eight hours' notice of a change of contact; participating in a psychosocial evaluation; attending all visits with D.D.W., court dates, and conference meetings and maintain contact with the Department; acquiring and maintaining stable employment for more than six months and providing payroll stubs and/or income verification documents to his caseworker; and refraining from engaging in any drug-related and illegal criminal activities. The plan also stated that failure to show up for a drug test would be considered a positive test. D.W. signed his family service plan on March 31, 2016.
On April 5, 2016, the Department filed a status report advising the court that D.D.W. was currently placed in a foster home and that the primary goal was relative adoption with a concurrent goal of relative conservatorship. Following a status hearing, the trial court signed an order approving D.W.'s family service plan and making it an order of the court.
On July 12, 2016, following a permanency hearing, D.W. submitted a fingernail sample which tested positive for cocaine and marijuana. A substance abuse panel taken from D.W. the same day tested positive for marijuana, and his hair sample also tested positive for cocaine and marijuana.
On October 4, 2016, D.W. pleaded guilty to possession of marijuana, and was sentenced to three days in county jail.
A second permanency hearing was held on October 20, 2016. The caseworker testified that in addition to the positive drug tests on February 18, 2016 and July 12, 2016, D.W. also had a "positive refusal" on February 22, 2016. In light of these positive tests, the trial court suspended visitation with D.D.W. and ordered that D.W. test clean before visitation could resume. The Department caseworker advised the court that the Department's current goal was unrelated adoption with a secondary goal of unrelated conservatorship.
The case proceeded to trial on January 31, 2017. Neither D.W. nor D.E.S. was present at trial. Prior to calling its first witness, the Department introduced numerous exhibits, which the trial court admitted, including the following: (1) D.W.'s October 6, 2016 conviction for possession of marijuana for which he was sentenced to three days in county jail; (2) D.W.'s April 20, 2012 conviction for theft, 3rd offender, for which he was sentenced in one year in state jail; and (3) D.W.'s April 24, 2012 conviction for theft by check for which he was sentenced to 163 days in jail.
Asia Young, the Department caseworker, testified that the Department received a referral on January 28, 2016, alleging neglectful supervision of D.D.W. by her mother, D.E.S., after D.E.S. tested positive for cocaine and marijuana at the time of delivery. One day later, the Department received a second referral alleging physical abuse of D.D.W. after D.D.W.'s urine tested positive for cocaine. Young testified that D.D.W. was also born with congenital syphilis.
Young testified that D.W. and D.E.S. have not refrained from using drugs during the pendency of the case and that neither parent has remained in contact with the Department to submit to random drug testing. Young testified that D.W. had a positive refusal drug test as well as positive drug tests during the pendency of the case. She further testified that, despite the Department's support of his efforts, D.W. failed to complete the services in his court-ordered family service plan. She stated that D.W. provided a DNA sample and "came to F.G.C. and one P.C. but that was it." Young testified that D.W. visited D.D.W. on one or two occasions during the case.
The record does not reflect what these acronyms refer to.
Young testified that D.D.W. is happy and bonded with her foster parents, the placement is safe and stable, D.D.W. is meeting all of her developmental and emotional milestones, and the foster parents have met all of D.D.W.'s emotional and physical needs throughout the pendency of this case. Young further testified that D.E.S. gave birth to another child on January 9, 2017, that the child has also been placed with the foster parents caring for D.D.W., and that the parents wish to adopt D.D.W. and her sibling.
Young testified that the last time she had contact with D.W. was in late September 2016. She subsequently attempted to get in touch with him at least once a week or every two weeks, depending on whether her call went through to voice mail. Young testified that the previous caseworker reviewed D.W.'s family service plan with him, D.W. signed it, and that, to her knowledge, all the referrals were properly sent out.
At the conclusion of the hearing, the Department requested termination of D.W.'s parental rights under subsections (D), (E), (N), and (O) of Family Code section 161.001(b)(1), and that the trial court make a finding that termination was in the best interest of the child. The attorney ad litem for D.D.W. concurred with the Department's request. The trial court granted the Department's request as to all statutory grounds, and signed its final decree of termination on March 8, 2017. This appeal followed.
The trial court also found the evidence sufficient to terminate D.E.S.'s parental rights pursuant to section 161.001(b)(1)(E) and (M), and that termination was in D.D.W.'s best interest.
Discussion
On appeal, D.W. challenges the legal and factual sufficiency of the evidence to support the predicate findings supporting termination under subsections (D) and (N). He also challenges the factual sufficiency of the evidence supporting the predicate findings under subsections (E) and (O).
D.W. does not challenge the trial court's best interest finding under section 161.001(b)(2) on appeal.
A. Burden of Proof and Standard of Review
Protection of the best interest of the child is the primary focus of the termination proceeding in the trial court and our appellate review. See In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). A parent's rights to the "companionship, care, custody, and management" of his or her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Accordingly, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
In a case to terminate parental rights under section 161.001 of the Family Code, the Department must establish, by clear and convincing evidence, that (1) the parent committed one or more of the enumerated acts or omissions justifying termination and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). 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 (West 2017); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Only one predicate finding under section 161.001(1)(b) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d at 362.
When conducting a factual sufficiency review, we consider and weigh all of the evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d at 345. "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. We give due deference to the factfinder's findings and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The fact finder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109.
B. Analysis
In his third issue, D.W. asserts that the evidence is factually insufficient to support the trial court's predicate finding that termination was warranted under Family Code section 161.001(b)(1)(O).
Under subsection (O), the trial court may order termination of the parent-child relationship if the court finds by clear and convincing evidence, in addition to the best interest finding, that the parent has:
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child[.]TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (West Supp. 2016). "Texas courts generally take a strict approach to subsection (O)'s application." In re C.A.W., No. 01-16-00719-CV, 2017 WL 929540, at *4 (Tex. App.—Houston [1st Dist.] Mar. 9, 2017, no pet.) (mem. op.) (citing In re D.N., 405 S.W.3d 863, 877 (Tex. App.—Amarillo 2013, no pet)). A parent's failure to complete one requirement of his family service plan supports termination under subsection (O). Id. at *5 (citing TEX. FAM. CODE ANN. § 161.001(b)(1)(O); In re M.C.G., 329 S.W.3d 674, 675 (Tex. App.—Houston [14th Dist.] 2010, pet. denied)).
D.W. does not dispute that (1) the Department had been D.D.W.'s temporary managing conservator for at least nine months and (2) the Department had taken custody of D.D.W. as a result of a removal from the parent under Chapter 262 for abuse or neglect. Rather, D.W. disputes whether the evidence is factually sufficient to show that he failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of D.D.W.
At trial, Young testified that D.W. failed to complete the required tasks and services outlined in his court-ordered family service plan. D.W. signed his plan on March 31, 2016. The plan required, among other things, that D.W. "refrain from engaging in any drug related and illegal criminal activities." Young testified that D.W. had not refrained from using drugs during the pendency of the case. In particular, the evidence admitted at trial showed that, on July 12, 2016, D.W. submitted a fingernail sample which tested positive for cocaine and marijuana, his substance abuse panel tested positive for marijuana, and his hair sample tested positive for cocaine and marijuana. The evidence also showed that on October 6, 2016, more than seven months after he signed his service plan, D.W. was convicted for possession of marijuana, for which he served three days in county jail.
D.W. also failed to maintain contact with the Department as required by his service plan. Young testified that the last time she had had contact with D.W. was in September 2016 (four months before trial) and that she subsequently tried to contact D.W. at least once or twice a week, but to no avail.
In conducting our factual sufficiency review, we must ascertain what disputed evidence, if any, exists as to the conduct in question. Walker v. Texas Dep't of Family & Protective Servs., 312 S.W.3d 608, 618 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Here, D.W. does not dispute the evidence of his drug use, his criminal conviction, or his failure to maintain contact with the Department. The record reflects that D.W. was not present at trial, and no evidence was admitted to demonstrate any attempt by D.W. to comply with the terms of his family service plan. Although Young testified that D.W. "came to F.G.C. and one P.C.," the evidence conclusively showed that D.W. did not comply with all of the requirements of his court-ordered service plan. See In re M.C.G., 329 S.W.3d at 675 (determining that parent's failure to complete one requirement of her service plan supports termination); In re J.S., 291 S.W.3d 60, 66-67 (Tex. App.—Eastland 2009, no pet.) ("Despite [parent]'s achievement of some of the plan's goals, the evidence establishes that other requirements of the plan were not achieved.").
Viewing the evidence in a neutral light, we conclude that a reasonable fact finder could have formed a firm belief or conviction that D.W. failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the child, who was in the permanent or temporary managing conservatorship of DFPS for not less than nine months as a result of her removal from the parent under Chapter 262. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O). We hold that the evidence is factually sufficient to support the trial court's predicate finding under subsection (O). Accordingly, we overrule D.W.'s third issue.
Having determined that the evidence is sufficient to support the trial court's finding on this statutory ground, we need not consider D.W.'s first and second issues challenging the trial court's predicate findings under subsections (D), (E), and (N). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (affirming termination decree based on one predicate without reaching second predicate found by trier of fact and challenged by parent).
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Jennings, Brown, and Lloyd.