Opinion
NUMBER 13-17-00098-CV
06-29-2017
IN THE INTEREST OF I.B., I.B., H.B., L.B., AND M.N., MINOR CHILDREN
On appeal from the 267th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellee the Texas Department of Family and Protective Services (the Department) filed suit seeking to terminate the parental rights of appellant I.B. to her five children, Is.B., Ie.B., twins L.B. and H.B., and M.N. At the time of trial, the children's ages were nine, eight, six, six, and three respectively. Following a bench trial, the trial court rendered judgment terminating appellant's parental rights and awarding permanent managing conservatorship of the children to the Department. By one issue, which we treat as two, appellant argues: (1) termination of her parental rights violates the equal protection clause; and (2) termination was not supported by the "most solid and substantial reasons" but was based on appellant's lack of reliable transportation to visit her children. We reverse and render in part and affirm in part.
In appeals involving the termination of parental rights, the Texas Rules of Appellate Procedure require the use of an alias to refer to a minor. TEX. R. APP. P. 9.8. We may also use an alias "to [refer to] the minor's parent or other family member" to protect the minor's identity. Id. We will refer to the mother of the children as appellant as she shares the same initials with two of her children. We will refer to the children sharing initials as Is.B. and Ie.B. to avoid confusion.
The trial court also terminated the parental rights of the children's three fathers, E.L., J.K., and M.N. However, only the children's mother appeals.
I. BACKGROUND
A. Removal of the Children
On June 3, 2012, the Department filed a petition to terminate the parental rights of appellant to her five children. The trial court subsequently entered an order granting the Department temporary managing conservatorship of the children. Is.B. and Ie.B. were returned to appellant's care in November of 2014, following appellant's completion of her court-ordered services, which included a parenting program, the maintenance of safe and stable housing, a drug and alcohol evaluation, a psychological evaluation, and individual counseling. L.B. and H.B. were later returned on February 20, 2015. On March 11, 2015, the trial court entered a final order appointing appellant and the Department as the joint managing conservators for the children, while also ordering that M.N. remain in his current foster care placement. The trial court ordered appellant to continue individual counseling sessions and to enroll Is.B. and Ie.B. in twice monthly counseling sessions. The trial court also enjoined appellant from "driving with the children without proof of a Driver's License and vehicle insurance."
On March 23, 2015, the Department filed a petition to modify the parent-child relationship and again removed the children from appellant's care. Following this second removal, the case proceeded to a February 6, 2017, parental-termination hearing.
B. The Termination Hearing Record
The Department presented one witness, caseworker Tonya Woytek. The trial court also received testimony from Joy Walker, a court appointed special advocate who was appointed as the guardian ad litem for the children. Appellant, who was served with citation by publication, did not appear at the termination hearing. No exhibits were introduced by the parties. The Department, however, requested the trial court to take judicial notice of "the Court's entire file in this cause, particularly that two of the Respondent fathers . . . have filed a voluntary affidavit of relinquishment." The trial court responded, "I will."
"A trial court may take judicial notice of its own records in matters that are generally known, easily proven, and not reasonably disputed." In re B.R., 456 S.W.3d 612, 618 n.4 (Tex. App.—San Antonio 2015, no pet.) (quoting In re J.E.H., 384 S.W.3d 864, 870 (Tex. App.—San Antonio 2012, no pet.)). For instance, a court may take judicial notice that a pleading has been filed in the case, its own orders in the proceeding, or of the law of another jurisdiction. Id.; see also In re H.M.P., No. 13-08-00643-CV, 2010 WL 40124, at *12 (Tex. App.—Corpus Christi Jan. 7, 2010, no pet.) (mem. op.). However, a court may not take judicial notice of the truth of allegations in its records. In re B.R., 456 S.W.3d at 618 n.4; In re J.E.H., 384 S.W.3d at 870; see Davis v. State, 293 S.W.3d 794, 798 (Tex. App.—Waco 2009, no pet.) ("[W]hile a court may judicially notice the existence of an affidavit in its file, it may not take judicial notice of the truth of the factual contents contained therein."). Accordingly, while the trial court took judicial notice of its file, we presume it did not take judicial notice of the truth of any allegations contained therein—i.e., the affidavits attached to the Department's pleadings. See In re B.R., 456 S.W.3d at 618 n.4; In re J.E.H., 384 S.W.3d at 870 (holding that the trial court could not take judicial notice of allegations the caseworker made in the family service plan or in the affidavit attached to the Department's petition); In re Allen, 359 S.W.3d 284, 289 n.5 (Tex. App.—Texarkana 2012, no pet.) ("No judicial notice could have been taken of [affidavit's] content because the content was not a subject matter for judicial notice."). Therefore, our review is limited to the evidence admitted at the termination trial and the properly noticed contents of the clerk's record.
C. Caseworker's Testimony
Tonya Woytek served as the family's conservatorship caseworker at the time of trial. Woytek, who was assigned to the family in August 2015, conceded that she did not have personal knowledge regarding the reasons for the first and second removals of the children, occurring in June 2012 and March 2015. Rather, Woytek's testimony regarding any events prior to August 2015 was based on her review of "the CPS file in this matter[.]"
Woytek testified that the Department developed a plan in November of 2014 to "slowly return the children to [appellant]." Is.B. and Ie.B. were returned to appellant first, and "they were doing well[.]" L.B and H.B. were returned to appellant's care on February 20, 2015, while M.N. remained in foster care placement. As a condition of the return, appellant was required to enroll herself and the children in counseling, obtain a driver's license, and enroll the children in school. However, appellant failed to enroll herself and the children in counseling, and she also failed to enroll L.B. and H.B. in school for a period of three weeks.
According to Woytek, the Department was also concerned that a registered sex offender was residing in the home. The registered sex offender was identified as J.K., the father to three of appellant's children. Woytek also stated that appellant was arrested and "had gone to jail." Woytek did not know for what offense appellant was arrested, and she did not state how long appellant was in jail or whether she was ever convicted of a criminal offense as a result of her arrest. Following her arrest, appellant left the children in the care of appellant's mother, who was not an approved caregiver due to her "history with the Department." As a result of these concerns, the Department removed the children from appellant in March of 2015.
At this time, the Department changed its plan for the children from reunification with appellant to termination of appellant's parental rights. However, the bench trial on the Department's petition to terminate parental rights did not take place until almost two years later.
The Department placed the four older children in San Antonio. Woytek stated "[r]ight now they're in foster homes and if these foster parents feel they cannot meet the children's needs behavior-wise, then they continue to be placed in different placements throughout the case." H.B., for example, has resided in ten different homes. Woytek explained that "there's not a lot of people who are willing, who have the patience to deal with these children, their behavior, so it's hard to find foster homes for these children right now and that is a problem. . . ." The children, who are in separate placements, see each other once a month.
When asked about the "status of the children" after the second removal, Woytek responded that she was not the caseworker at the time. She then proceeded to testify that "they did have behavior issues[.]" Woytek stated that L.B. and H.B., who were five-years old at the time, were "urinating on the beds[.]" Woytek noted that there are "more issues with [L.B. and H.B.] than [Is.B. and Ie.B.] With respect to Is.B., Woytek stated "we haven't had a lot of concerns" and that "[h]e seems to do fairly well in school[.]"
Woytek maintained that "the children" had regressed after being removed from appellant's care. She also cited behavior "such as pouring shampoo down the drain," although she did not identify which child exhibited this behavior. Woytek noted that, after being removed from appellant's care, H.B. "had to be reinstructed about boundaries and not being so close to everyone." Woytek also shared that "[H.B.] did tell one of her doctors that she would pee on herself so nobody would touch her." Woytek stated that Ie.B. was diagnosed with "attention deficit hyperactivity disorder, adjustment disorder with mixed disturbance in emotions and conduct." However, she noted no particular behavior concerns for Ie.B.
According to Woytek, appellant "did have housing for her children and appeared to be supporting them for, financially for a small frame of time." Appellant was working for a "nursing and rehab" company "during the reunification." However, when Woytek "entered the case" in August of 2015 she learned that appellant "left her job." At that time, appellant told Woytek that she was moving to Houston where she had more support.
Woytek testified that the Department assigned a courtesy worker in Houston to assist appellant with completing her family service plan. The Department developed further services to "hone in on the things that led to the removal the second time, such as having the sex offender in the home" and to "help her make better decisions in regards to her children." The service plan required appellant to attend individual counseling and submit to monthly drug testing. Woytek was able to contact appellant at times through phone calls and text messages. Often times, Woytek was unable to reach appellant because "she's always at work whenever [Woytek tries] to call her." Appellant, however, did not send Woytek "a verification of employment." Woytek also stated that appellant did not return phone calls from the courtesy worker in Houston. Appellant failed to provide Woytek with her address, so Woytek was unable to determine whether appellant's residence was an appropriate environment for the children.
The Department presented no evidence that appellant had a substance abuse problem.
The Department scheduled bi-monthly visits for appellant with her children residing in San Antonio. The Department also scheduled visits with M.N., who was placed with his paternal aunt in Houston as of August 2015. Woytek testified that appellant attended two visits in San Antonio but later she "was not showing up for the visits." Appellant initially told the Department that she had transportation to get from Houston to San Antonio, but she later informed the Department that she did not. Regarding appellant's failure to maintain visitation, Woytek testified:
She has inquired about seeing them, however at this time she doesn't have the resources to get to go see them. She wants the Department, she relies upon the Department to facilitate her visit to get her to A to B and if she can't get to a visit in Houston in the same town with [M.N.], how is she going to
get to visit in San Antonio
According to Woytek, appellant was not allowed to have phone calls with the children "due to the therapist['s] recommendation." The Department denied appellant's later request to have her phone call communications with the children reinstated. Woytek stated that appellant did not provide any financial support for the children since the March 2015 removal. Woytek's main concern regarding appellant was that the Department did not know where she was living.
Woytek opined that the termination of appellant's parental rights was in the children's best interest, stating that the Department "would like to find a family for these children that would love and take care of them and genuinely have an interest in them in keeping them long term." Woytek testified that the four older children were not currently in "adoptive placements." She explained, "There's family who we call foster adopt homes that, you know, once this case ever goes to adoption, they would be put on that website and be looked at by families for adoption."
On cross-examination, appellant's counsel asked Woytek, "Isn't it true that a number of parents rely on the Department for transportation to their visits?" Woytek responded:
To a certain extent. At the beginning of the case we do work with parents to the best of our ability, but at some point, the bear has to learn how to hunt for himself. You have to build up money. You have to get a job. You have to save money. You have to get transportation. You will need to, people are going to help you for only so long.
D. Court Appointed Special Advocate's Testimony
Joy Walker, the court appointed special advocate, testified that appellant violated several of the Department's requirements during the monitored return of the four children in March of 2015, including: (1) exposing the children to J.K., the father of three of the children and a registered sex offender; (2) failing to enroll L.B. and H.B. in school; (3) allowing the children to stay with their maternal grandmother, "who was not supposed to be allowed to be around the children;" (4) failing to enroll the children in "individual or family counseling;" and (5) driving the children places without a driver's license.
Joy Walker was appointed as the guardian ad litem for the children. Section 107.011 of the family code makes mandatory the appointment of a guardian ad litem "in a suit filed by a governmental entity seeking termination of the parent-child relationship." TEX. FAM. CODE ANN. § 107.011(a) (West, Westlaw through 2015 R.S.). The guardian ad litem may be "a charitable organization composed of volunteer advocates." Id. §§ 107.011(b), 107.031 (West, Westlaw through 2015 R.S.). Section 107.002(e) further provides as follows:
Unless the guardian ad litem is an attorney who has been appointed in the dual role and subject to the Texas Rules of Evidence, the court shall ensure in a hearing or in a trial on the merits that a guardian ad litem has an opportunity to testify regarding, and is permitted to submit a report regarding, and is permitted to submit a report regarding, the guardian ad litem's recommendations relating to: (1) the best interests of the child; and (2) the bases for the guardian ad litem's recommendations.Id. § 107.002(e) (West, Westlaw through 2015 R.S.).
According to Walker, appellant visited M.N. several times, "but that started slacking off" until the visitation was terminated. M.N. has been placed with his paternal aunt "for a while" and "[h]e seems to be very happy, part of the family." Walker explained, "He's always appropriately dressed and in nice clothes and his aunt seems to be very attached to him and he seems to have bonded well with her and her children." The paternal aunt plans to adopt M.N.
Walker testified that L.B. and H.B. were not "potty trained" at the age of three when they were first removed from appellant's care. L.B. and H.B. became very aggressive in their foster placement after they were removed from appellant in March of 2015. L.B. and H.B. began "urinating and soiling themselves." At one point, H.B. was physically aggressive with another child in foster placement, which resulted in her being placed in a residential treatment center for a period. Walker felt that "the return [of the children to appellant] just seemed to have been more than they could handle and then being removed again just increased the problems that they were having. . . ."
Walker observed appellant's visitations with the children and described that "[appellant] is very loud in her discipline, very threatening in her discipline of the children, to the point of pretending to call the police on the phone to come get them because they won't mind. She is not very attentive, not very nurturing . . . ." Walker stated that L.B. and H.B. told her that "[because appellant] didn't come to see them, they didn't want to see her anymore."
With respect to H.B., Walker testified, "Throughout the case we have wondered about the possibility of some sexual abuse, but nothing that could be proven[.]" There was no evidence of sexual abuse. Walker did not state whether the abuse was suspected to have occurred in appellant's care or in foster care.
D. Order of Termination
After the parties rested and closed, the trial court announced, "The petition is granted. What are the specific grounds in the record[?]" The Department informed the trial court that it was seeking termination of appellant's parental rights pursuant to Texas Family Code sections 161.001(b)(1)(D), (E), (J), (N), and (O). See TEX. FAM. CODE ANN. § 161.001(b)(1) (West, Westlaw through 2015 R.S.). The trial court then requested the Department to "submit the order." However, in its final judgment, the trial court found that there existed fourteen separate statutory-termination grounds—Texas Family Code sections 161.001(b)(1)(A), (B), (C), (D), (E), (F), (I), (K), (M), (N), (O), (P), (Q) and (R)—and that termination was in the children's best interest. See id. § 161.001(b)(1), (2). Many of the grounds contained in the final judgment have no application to the evidence presented at trial. For instance subsection (R) requires evidence that a parent has "been the cause of a child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription." Id. § 161.001(b)(1)(R).
These subsections generally provide termination grounds for the following actions of a parent: endangerment, being the major cause of the failure of a child to be enrolled in school as required by the Texas Education Code, constructively abandoning a child who has been in the conservatorship of the Department for not less than six months, and failing to comply with the provisions of a court order establishing the actions necessary for a parent to obtain the return of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (J), (N), and (O) (West, Westlaw through 2015 R.S.).
Nevertheless, when an inconsistency exists between the trial court's oral pronouncement at the hearing and its subsequent written order, the written judgment controls over the oral ruling. See In re A.S.G., 345 S.W.3d 443, 448 (Tex. App.—San Antonio 2011, no pet.) (explaining that the final written order in a suit affecting parent-child relationship that did not award attorney's fees controlled over the oral pronouncement awarding such fees); see also In re M.L.S., No. 11-12-00042-CV, 2012 WL 2371042, at *1 (Tex. App.—Eastland June 21, 2012, no pet.) (mem. op.) (concluding that although the trial court's oral pronouncement only included findings that appellant's parental rights should be terminated based on section 161.001(1)(D), (E), (O), and (P), the written judgment which included a finding that her rights should be terminated under subsection (R) controlled). Appellant now appeals from the trial court's judgment terminating her parental rights.
II. SUFFICIENCY OF THE EVIDENCE
By her second issue, which we address first, appellant argues that the termination of her parental rights was not supported by the "most solid and substantial reasons." Specifically, appellant argues that appellant's parental rights cannot be terminated for the reason that she "lack[ed] a reliable car to travel to visit her children in distant locations (Houston and San Antonio) . . . ." We construe appellant's argument as a challenge to the legal sufficiency of the evidence supporting the trial court's judgment. See TEX. R. APP. P. 33.1(d) ("In a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party's brief."); see also In re A.C., No. 02-16-00325-CV, 2017 WL 817153, at *1 (Tex. App.—Fort Worth Mar. 2, 2017, no pet.) (construing a brief that did not contain an explicit statement of the issue as a challenge to the legal and factual sufficiency of the evidence supporting a best interest finding); In re E. Y., No. 13-13-00203-CV, 2013 WL 3377639, at *3 (Tex. App.—Corpus Christi July 3, 2013, no pet.) (mem. op.) (construing appellant's argument that transportation problems prevented him from visiting his child who lived in another county as a challenge to the sufficiency of the evidence supporting termination).
We note that the Department counters in its brief that there was legally sufficient evidence supporting the termination of appellant's parental rights.
A. Standard of Review and Applicable Law
The natural right that exists between parents and their children is one of constitutional dimension. See In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002) (examining constitutional implications of terminating parental rights). A parent's right to "the companionship, care, custody and management of his or her children" is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59 (1982) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Involuntary termination of parental rights divests the parent and child of all legal rights, privileges, duties and powers normally existing between them, except for the child's right to inherit from the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see In re D.S.P, 210 S.W.3d 776, 778 (Tex. App.—Corpus Christi 2006, no pet.). However, "[j]ust as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right." In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due process requires that termination of parental rights be supported by clear and convincing evidence. In re J.F.C., 96 S.W.3d at 263; In re D.S.P., 210 S.W.3d at 778. This intermediate standard falls between the preponderance of the evidence standard of civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth 2006, pet. denied). It is defined as 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." TEX. FAM. CODE ANN. § 101.007 (West, Westlaw through 2015 R.S.); see In re C.H., 89 S.W.3d at 25.
Before terminating parental rights, the trier of fact must find: (1) the parent committed an act prohibited by section 161.001(b)(1) of the Texas Family Code; and (2) termination is in the child's best interest. See TEX. FAM. CODE ANN. §§ 153.002, 161.001 (West, Westlaw through 2015 R.S.); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). "The fact finder must find that both elements are established by clear and convincing evidence; proof of one element does not relieve the movant of the burden of proving the other." In re L.J.N., 329 S.W.3d 667, 671-72 (Tex. App.—Corpus Christi 2010, no pet.).
In evaluating the evidence for legal sufficiency in parental termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the challenged ground for termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so, while disregarding all evidence that a reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. Id.
B. Best Interest
A statutory act or omission under section 161.001(1) must be coupled with a finding that termination of the parent-child relationship is in the best interest of the child. In re C.M.C., 273 S.W.3d 862, 876 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Because we conclude the evidence is legally insufficient to support the trial court's best interest finding, we focus our review of the evidence as it pertains to that finding. See In re E.D., 419 S.W.3d 615, 617 (Tex. App.—San Antonio 2013, pet. denied).
1. Applicable Law
There is a strong presumption that the best interest of the child is served by keeping the child with a natural parent, and the burden is on the Department to rebut that presumption. Id.; In re S.M.L., 171 S.W.3d 472, 480 (Tex. App.—Houston [14th Dist.] 2005, no pet.). In reviewing the sufficiency of the evidence to support a best interest finding, we examine the following factors articulated in Holley v. Adams: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons seeking custody; (5) the programs available to assist those persons seeking custody in promoting 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) acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parent's acts or omissions. 544 S.W.2d 367, 371-72 (Tex. 1976); see In re S.M.L., 171 S.W.3d at 480.
This list is not exhaustive, nor is evidence required on all nine factors to support a finding terminating a parent's rights. Holley, 544 S.W.2d at 372; In re S.M.L., 171 S.W.3d at 480. The State need not prove all of the Holley factors as a condition precedent to parental termination. In re C.H., 89 S.W.3d at 27. Undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child, but the presence of scant evidence relevant to each Holley factor will not support such a finding. In re J.J.O., 131 S.W.3d 618, 630-31 (Tex. App.—Fort Worth 2004, no pet.) (citing In re C.H., 89 S.W.3d at 27). The best interest of the child is often infused with the statutory grounds for termination under the first prong, but the best-interest determination must have a firm basis in facts standing apart from the offending behavior. In re W.C., 98 S.W.3d 753, 756-57 (Tex. App.—Fort Worth 2003, no pet.).
2. Analysis
a. Desires of the Children
With respect to the first Holley factor, Walker testified that H.B. and L.B. made statements that they did not want to see appellant anymore due to the lack of visitation. Walker also stated that M.N. was bonded to his paternal aunt and her family. However, the Department presented no evidence concerning the desires of Is.B. and Ie.B This factor weighs slightly in favor of termination.
b. Emotional and Physical Needs
There was no evidence of any particular physical needs of the children. When the four older children were returned to her care, appellant had adequate housing and was able to support the children financially. Appellant represented to the Department that she was employed while residing in Houston. However, the Department was unable to verify whether appellant had suitable housing at the time of trial because they did not know where she lived.
The record contains references to a counselor or therapist; however, no mental health professionals testified as to the emotional needs of the children. Woytek stated that Ie.B. was diagnosed with "attention deficit hyperactivity disorder, adjustment disorder with mixed disturbance in emotions and conduct." Nevertheless, she noted no particular behavior concerns for Ie.B. While the Department presented evidence that H.B. and L.B. had behavioral issues in foster placement, there was no evidence that the behavior was the result of anything that occurred while they were placed with appellant or that appellant was unable to manage the children's behavior while they were in her care. Walker stated that "the return [of the children to appellant] just seemed to have been more than they could handle," but she also observed that "being removed again just increased the problems that [the children] were having. . . ." There was no evidence that Is.B., Ie.B., and M.N. exhibited any concerning behaviors.
There was, however, evidence that the placements selected by the Department were unable to meet the needs of the children. According to Woytek, "there's not a lot of people who are willing, who have the patience to deal with these children, their behavior, so it's hard to find foster homes for these children right now and that is a problem. . . ." This resulted in the children "continu[ing] to be placed in different placements throughout the case." H.B., for example, has resided in ten different foster homes. The need for permanence is a paramount consideration for a child's present and future physical and emotional needs. Edwards v. Tex. Dep't of Protective & Regulatory Servs., 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no pet.), disapproved of on other grounds by In re J.F.C., 96 S.W.3d 256 (Tex. 2002); In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (stating that children need permanency and security). Due to the Department's failure to meet the emotional needs of the children, this factor weighs against termination.
c. Emotional and Physical Danger to the Children
The Department expressed concern that appellant exposed the four older children to J.K., a registered sex offender. J.K. was a father to three of the children, and, at the time, he was also appointed by the trial court as a possessory conservator, albeit with "no rights and no visitation." The trial court enjoined M.N.'s father from having any contact with the children, but there was no such order in place regarding J.K. There was no evidence that the children suffered any physical or emotional harm by being exposed to J.K. While appellant arguably exhibited poor judgment in this regard, we do not believe that appellant's actions constituted evidence that appellant exposed the children to emotional or physical danger. See In re J.R., 171 S.W.3d 558, 571 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (concluding that mother's action in exposing her children to a registered sex offender reflected very poor judgment, but that such evidence alone was legally insufficient to show endangerment); see also In re E.N.C., 384 S.W.3d at 808 (concluding that without evidence of the nature of the father's conviction for having an inappropriate relationship with a minor, the court could not conclude that the father's conviction "equates to a risk of his having an inappropriate relationship with his own children").
According to Woytek, J.K. was convicted of an offense at the age of sixteen, requiring him to register as a sex offender.
The Department also expressed concern that appellant allowed the four older children to stay with her mother. Appellant's mother was not an approved caregiver because she had a "history" with the Department. There was no evidence, however, that appellant, who has since relocated from Victoria to Houston, would continue to rely on her mother and J.K. for support. This factor is neutral as to termination.
d. The Parental Abilities of the Persons Seeking Custody
Appellant failed to enroll H.B. and L.B. in school for a period of three weeks. However, the Department presented no evidence that H.B. and L.B., who were five-years old at the time, were subject to compulsory school attendance. See TEX. EDUC. CODE ANN. § 25.085(b) ("[A] child who is at least six years of age, or who is younger than six years of age and has previously been enrolled in first grade . . . shall attend school."); Yonko v. Dep't of Family & Protective Servs., 196 S.W.3d 236, 242 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (discussing compulsory school attendance in the context of parental termination grounds). Nevertheless, the trial court could have considered appellant's failure to enroll H.B. and L.B. in school as a negative reflection on her parental abilities.
There was also evidence that appellant was in jail for an unspecified offense. Presumably, appellant's period of confinement was brief as she moved to Houston after the children's removal in March 2015. There is no evidence that appellant was ever convicted following her arrest, that she is facing pending criminal charges, or that she has any criminal history aside from the March arrest. Cf. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.) (explaining that evidence of a parent's "inability to maintain a lifestyle free from arrests and incarcerations" was relevant to a best interest determination).
Walker testified that appellant was loud when disciplining her children during visitations and threatened to call the police if they did not behave. She was concerned that two of the children were not "potty-trained" by the age of three. But there was also evidence that when the four older children were placed back with appellant, that she had adequate housing and was able to support the children financially. Woytek testified that appellant quit her job in August of 2015, but the record reflects that appellant found employment after moving to Houston. The Department presented no evidence concerning appellant's ability to support the children at the time of the February 2017 termination hearing. Woytek's primary concern was that the Department did not know where appellant was living.
Walker explained that M.N. is "always appropriately dressed and in nice clothes and his aunt seems to be very attached to him and he seems to have bonded well with her and her children." For the four older children, Woytek noted that many of the placements have not been able to meet the children's needs behavior-wise. None of the children's current caretakers testified, and the Department presented little to no evidence concerning the parenting abilities of anyone seeking custody of the children. This factor weighs slightly in favor of termination.
e. Available Programs
This factor takes into account assistance programs available to the person seeking to avoid termination in promoting the best interest of the child. In re C.J.S., 383 S.W.3d 682, 694 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The fact finder can infer from a parent's failure to take the initiative to utilize the available programs that the parent did not have the ability to motivate herself in the future. In Interest of G.N., 510 S.W.3d 134, 139 (Tex. App.—El Paso 2016, no pet.). Here, appellant previously completed her family service plan—a parenting program, the maintenance of safe and stable housing, a drug and alcohol evaluation, a psychological evaluation, and individual counseling. Following the second removal of the children, the Department developed additional services to address appellant "having the sex offender in the home" and to "help her make better decisions in regards to her children." This service plan required appellant to attend individual counseling and submit to monthly drug testing. Appellant did not comply with these additional requirements following the second removal. However, the Department presented no evidence of services that would be available to appellant to assist with the Department's most pressing concern—whether appellant had suitable housing. Woytek indicated that services were not available to address any concerns stemming from appellant's indigence: "[T]he bear has to learn how to hunt for himself. You have to build up money. You have to get a job. You have to save money. You have to get transportation. You will need to, people are going to help you for only so long." However, a parent's poverty is not a basis for termination. See In re J.W., 152 S.W.3d 200, 207 (Tex. App—Dallas 2004, pet. denied) (recognizing that termination should not be used to merely reallocate a child to "better" or more prosperous parents); see also In re G.H., No. 02-14-00261-CV, 2015 WL 3827703, at *60 (Tex. App. June 18, 2015) (mem. op.).
This factor weighs against termination.
f. Plans for the Child and Stability of the Home or Proposed Placement
The Department's placement of the children resulted in them being separated and moved frequently between foster homes. Of the five children, only M.N. was in a potential adoptive placement. Although almost two years had passed since the Department's second removal, its plan for the four older children remained uncertain: "There's family who we call foster adopt homes that, you know, once this case ever goes to adoption, they would be put on that website and be looked at by families for adoption."
Appellant was unemployed and without transportation for a period of time. She represented to the Department that she found employment in Houston, but the Department was unable to determine where appellant lived.
The record reflects uncertainty and instability whether or not the children remain in the Department's care. These factors are neutral as to termination.
g. Acts or Omissions of the Parent and Excuse
At the time of the termination hearing, appellant had not visited her children for an extended period. However, appellant continued to ask to see her children, but lacked adequate transportation to do so. As stated by Woytek,
She has inquired about seeing them, however at this time she doesn't have the resources to get to go see them. She wants the Department, she relies upon the Department to facilitate her visit to get her to A to B and if she can't get to a visit in Houston in the same town with [M.N.], how is she going to get to visit in San Antonio.Woytek was concerned with appellant's continued reliance on the Department to facilitate visitation with appellant's children. The Department denied appellant's request to visit with her children by phone. Appellant requested to have phone contact with her children as recently as a week before the termination hearing.
While living in Victoria, appellant utilized her mother and the father of three of her children as support. The former had a history with the Department and the latter was a registered sex offender. Following the children's subsequent removal, appellant moved to Houston for the purpose of having more support. These factors weigh against termination.
3. Summary
Sometimes, a parent's offending behavior will demand termination of parental rights, but there are other cases in which the best interest determination must have a firm basis in facts standing apart from the offending behavior. In re W.C., 98 S.W.3d at 758. "Although [a parent's] behavior may reasonably suggest that a child would be better off with a new family, the best interest standard does not permit termination merely because a child might be better off living elsewhere." Id. "Termination should not be used to merely reallocate children to better and more prosperous parents." Id. We conclude that appellant's offending behavior is not egregious enough, on its own, to warrant a finding that termination is in the children's best interests. Therefore, there must be other independent facts to support the trial court's best-interest finding. See id.
The forty-five page reporter's record offers no details as to the circumstances leading to the children's first removal. Further, the Department's witness was not assigned as the family's caseworker until August 2015, more than three years after this case was initiated. She had no personal knowledge of either the first or second removal of the children. Similarly, Walker's testimony focused primarily on the events leading to the second removal. She referred to a regression in the children's behavior, but was unable to explain the cause for the regression. There was evidence that H.B. and L.B. exhibited behavior problems. But none of those persons who actually cared for the children or witnessed behavioral issues testified concerning their particular needs. While the children were apparently seeing a therapist or counselor, there was no testimony from any mental health professionals—counselor, therapist, psychologist, psychiatrist—as to the emotional needs of the children. Whatever those needs may be, the Department admittedly was unable to adequately meet them. At the time of trial, the children were separated from their siblings, had been moved frequently between foster placements and residential treatment facilities, and, with the exception of M.N., there were no concrete plans for a more permanent placement.
While appellant failed to attend counseling following the second removal, she had previously completed an extensive family service plan—a parenting program, the maintenance of safe and stable housing, a drug and alcohol evaluation, a psychological evaluation, and individual counseling. The only evidence concerning appellant's status at the time of trial was that she was living in Houston, but lacked transportation to see her children, four of whom were living in San Antonio.
On the record before us, we conclude that no reasonable fact-finder could have formed a firm belief or conviction that termination of appellant's parental rights was in the children's best interest. See TEX. FAM. CODE ANN. § 161.001(2); In re J.F.C., 96 S.W.3d at 272; see also In re C.T.E., 95 S.W.3d 462, 467-69 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (holding that evidence was insufficient to support best-interest finding even though the father was incarcerated and had a lengthy criminal history because (1) there was no evidence the children, who had behavioral problems and special needs, would be adopted or whether they would be adopted by the same family, (2) one child had been in nine different foster homes and the other in six different foster homes, and (3) there was evidence one child was sexually abused while in Department's care); Horvatich v. Tex. Dep't of Protective & Regulatory Servs., 78 S.W.3d 594, 601 (Tex. App.—Austin 2002, no pet.) (noting that the mother had exhibited poor parenting abilities and failed to provide a safe and stable home in the past, but concluding there was insufficient evidence to support the best-interest finding because the record lacked evidence regarding the mother's current parental abilities, the children's current conditions, and future plans for the children).
We sustain appellant's second issue. Due to our disposition of this issue, we need not address appellant's first issue. See TEX. R. APP. P. 47.1 (stating that the appellate court must address every issue raised and necessary to final disposition of the appeal).
III. CONCLUSION
We reverse that portion of the trial court's judgment terminating appellant's parental rights and render judgment denying the Department's petition for termination as to appellant. We affirm the judgment in all other respects. Our decision does not affect the trial court's appointment of the Department as the children's managing conservator. See In re J.A.J., 243 S.W.3d 611, 613, 617 (Tex. 2007) (holding that the reversal of a termination judgment does not affect the trial court's conservatorship appointment absent assigned error).
Appellant does not challenge the trial court's conservatorship appointment.
LETICIA HINOJOSA
Justice Delivered and filed the 29th day of June, 2017.