Opinion
No. 04-17-00846-CV
05-02-2018
IN THE INTEREST OF E.A.Z.P., a Child
MEMORANDUM OPINION
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2016PA02449
Honorable Richard Garcia, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
C.P. and J.V. appeal the trial court's order terminating their parental rights to their son, E.A.Z.P. The only issue presented on appeal is whether the evidence is legally and factually sufficient to support the trial court's finding that termination was in E.A.Z.P.'s best interest. We affirm the trial court's order.
BACKGROUND
On October 31, 2016, the Texas Department of Family and Protective Services filed a petition to terminate C.P.'s and J.V.'s parental rights to E.A.Z.P. On the date the petition was filed, E.A.Z.P. was six months old. A bench trial was held on November 17, 2017.
The Department's caseworker testified the Department received a referral on April 15, 2016, alleging C.P. was using methamphetamines, and E.A.Z.P. tested positive for methamphetamines at his birth. As a result, E.A.Z.P. suffered withdrawals, including tremors and muscle spasms. The caseworker testified E.A.Z.P. was initially placed with his maternal great-grandmother but was subsequently placed with a fictive kin family on February 1, 2017. E.A.Z.P. is very well cared for by the family and calls his fictive kin parents "mama" and "dada." As a result of being exposed to drugs at birth, E.A.Z.P. is speech-delayed, and the Department plans to provide E.A.Z.P. with speech therapy when appropriate. The caseworker testified E.A.Z.P. "has quite a language deficit, and he really doesn't verbalize as much as he should for his age."
The caseworker testified a family service plan was reviewed with C.P. The plan required C.P. to complete a drug assessment and psychological evaluation and follow the recommendations, complete individual counseling and a parenting class, adhere to random drug testing, obtain stable housing and employment, and refrain from criminal activity. On February 27, 2017, C.P. completed a substance abuse assessment on her fourth attempt. C.P. did not follow the assessment recommendations and was discharged from individual counseling and a parenting class due to nonattendance. In August of 2017, C.P. tested positive for methamphetamines; however, subsequent test results have been negative. C.P. told the caseworker she has not maintained stable housing but "kind of go[es] from place to place." She also was never employed while the case was pending. The caseworker testified C.P.'s pattern of instability, inconsistency, and lack of sobriety pose a threat to E.A.Z.P.'s well-being. C.P. missed only three or four of her visits with E.A.Z.P.; however she was usually twenty to thirty minutes late to the visits. Finally, C.P. was arrested in December of 2016 for robbery and in May of 2017 for theft of property, and the charges are still pending.
The caseworker testified J.V. has been incarcerated the entire time the case has been pending and is not due to be released until 2020. As a result, J.V. has never visited with E.A.Z.P. J.V. never contacted the caseworker to inquire about E.A.Z.P.'s welfare, and E.A.Z.P. does not have any bond with J.V.
J.V. testified via telephone that he was serving time in prison for a conviction of felon in possession of a firearm. J.V. stated his scheduled release date is November 18, 2020, but he is eligible for parole before that date.
C.P. testified she was discharged from services because she does not own a vehicle and has transportation issues. C.P. further testified she is currently living with her grandmother, and her mother and brother financially support her. C.P. stated she attended AA/NA meetings twice a week from February of 2017 through September of 2017 but stopped because she was arrested. C.P. also testified she recently started a drug recovery program. C.P. did not believe E.A.Z.P. was speech-delayed.
After hearing the testimony, the trial court terminated C.P.'s and J.V.'s parental rights, and they both appeal.
STANDARD OF REVIEW AND STATUTORY REQUIREMENTS
To terminate parental rights pursuant to section 161.001 of the Code, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. §§ 161.001, 161.206(a) (West Supp. 2017); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In this case, the trial court found clear and convincing evidence of four predicate grounds to terminate C.P.'s parental rights, two predicate grounds to terminate J.V.'s parental rights, and also found termination of C.P.'s and J.V.'s parental rights was in the best interest of E.A.Z.P.
We evaluate the legal and factual sufficiency of the evidence to support the trial court's findings under the standard of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). Under this standard, "[t]he trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witnesses." In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.—San Antonio Jan. 30, 2017, no pet.) (mem. op.).
BEST INTEREST FINDING
In determining the best interest of a child, courts apply the non-exhaustive Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans held by the individuals seeking custody of the child; (7) the stability of the home of the parent and the individuals seeking custody; (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. Id. The foregoing factors are not exhaustive, and "[t]he absence of evidence about some of [the factors] would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest." In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). "A trier of fact may measure a parent's future conduct by his past conduct [in] determin[ing] whether termination of parental rights is in the child's best interest." In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).
E.A.Z.P. is too young to express his desires, but he is bonded with his fictive kin family. E.A.Z.P. was approximately three months old when he was placed with his fictive kin family and calls his fictive kin parents "mama" and "dada." See In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) ("When children are too young to express their desires, the factfinder may consider whether the children have bonded with the foster family [and] are well- cared for by them."). C.P. has not addressed her drug abuse problem which led to E.A.Z.P.'s removal, and she tested positive for methamphetamines three months before trial. See In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (noting parent's drug use supports a finding that termination is in best interest of the child). C.P. does not have a stable home or employment and has charges pending against her for robbery and theft of property. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (noting parent's inability to provide a stable home supports a finding that termination is in the best interest of the child). J.V. has been incarcerated during the entire pendency of the case and is not scheduled to be released from prison until November of 2020. In re S.R., 452 S.W.3d at 370 (relying on periods of parent's incarceration while proceedings were pending as evidence to support best interest finding). Because of his incarceration, J.V. has not engaged in any services and has no bond with E.A.Z.P.
Having reviewed the record, we hold the evidence is sufficient to support the trial court's finding that termination of C.P.'s and J.V.'s parental rights was in E.A.Z.P.'s best interest.
CONCLUSION
The order of the trial court is affirmed.
Sandee Bryan Marion, Chief Justice