Opinion
04-23-00755-CV
01-31-2024
IN THE INTEREST OF J. K. G., Jr., a Child
From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2022-PA-00379 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Irene Rios, Justice
Appellant Mother appeals the trial court's order terminating her parental rights to her child, J.K.G. Mother challenges the sufficiency of the evidence supporting the trial court's finding that termination was in J.K.G.'s best interest. We affirm.
To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the parents as "Mother" and "Father" and we refer to the child using his initials or as "the child." See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2). Although the trial court's order terminated Mother's and Father's parental rights to the child, only Mother appeals.
Background
The Department of Family and Protective Services ("the Department") became involved in the underlying case in February 2022, when the Department filed a motion for the parents to participate in family-based safety services ("FBS") after Father was arrested for assault. At the initial FBS meeting, Mother admitted to long-term use of methamphetamines and heroin with the most recent use being five days before the meeting.
On March 10, 2022, the Department filed a petition seeking temporary managing conservatorship of the child and termination of Mother's and Father's parental rights. On January 3, 2023, the trial court held a bench trial. The trial court heard testimony from: Rachel Midava, the Department's FBS caseworker; Norma Lailson, the Department's caseworker; and Mother.
On February 3, 2023, the trial court, presided by an associate judge, entered an order terminating Mother's parental rights to J.K.G. On August 2, 2023, the district judge denied Mother's motion for de novo review of the trial on the merits and upheld the associate judge's order of termination. The trial court terminated Mother's parental rights based on statutory grounds (N), (O), and (P) in subsection 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(N), (O), (P). The trial court also found it was in J.K.G.'s best interest to terminate Mother's parental rights. See id. § 161.001(b)(2). Mother appeals.
Statutory Requirements and Standard of Review
To terminate parental rights pursuant to section 161.001 of the Texas Family 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. Tex. Fam. Code Ann. § 161.001(b). Clear and convincing evidence requires "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.
When reviewing the sufficiency of the evidence, we apply well-established standards of review. See id. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (conducting a factual sufficiency review); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (conducting a legal sufficiency review).
"In reviewing the legal sufficiency of the evidence to support the termination of parental rights, we must 'look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.'" In re J.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *2 (Tex. App.-San Antonio Nov. 1, 2017, pet. denied) (mem. op.) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. "A corollary to this requirement is that a [reviewing] court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.
"In reviewing the factual sufficiency of the evidence to support the termination of parental rights, we 'must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.'" J.L.B., 2017 WL 4942855, at *2 (quoting J.F.C., 96 S.W.3d at 266). "A [reviewing court] should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266. "The [reviewing] court must hold the evidence to be factually insufficient if, in light of the entire record, the disputed evidence contrary to the judgment is so significant that a reasonable factfinder could not have resolved that disputed evidence in favor of the ultimate finding." In re M.T.C., No. 04-16-00548-CV, 2017 WL 603634, at *2 (Tex. App.-San Antonio Feb. 15, 2017, no pet.) (mem. op.).
Further, in a bench trial, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. HealthTronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 582 (Tex. App.-Austin 2012, no pet.). This is because "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.-Austin 2014, no pet.) (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.)). We, therefore, defer to the trial court's judgment regarding credibility determinations. Coburn, 433 S.W.3d at 823-24.
Best Interest
Mother argues the evidence is legally and factually insufficient to support a finding that termination of her parental rights is in J.K.G.'s best interest.
When considering the best interest of a child, we recognize the existence of a strong presumption that the child's best interest is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, we also presume that prompt and permanent placement of the child in a safe environment is in the child's best interest. Tex. Fam. Code Ann. § 263.307(a).
In determining whether a parent is willing and able to provide the child with a safe environment, we consider the factors set forth in section 263.307(b) of the Texas Family Code. See id. § 263.307(b). We also consider the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). "The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." Id. In analyzing these factors, we must focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective & Regul. Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ).
These factors include:
(1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the department; (5) whether the child is fearful of living in or returning to the child's home; (6) the results of psychiatric, psychological, or developmental evaluations of the child [or] the child's parents . . .; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child's family demonstrates adequate parenting skills . . .; and (13) whether an adequate social support system . . . is available to the child.Tex. Fam. Code Ann. § 263.307(b).
These factors include: (1) the child's desires; (2) the child's present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child's best interest; (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. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).
Evidence that proves one or more statutory ground for termination may also constitute evidence illustrating that termination is in the child's best interest. C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). "A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." See In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). "A trier of fact may measure a parent's future conduct by his past conduct and determine whether termination of parental rights is in the child's best interest." Id.
In determining the best interest of a child, two factors the trial court considers are "whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; [and] . . . whether there is a history of substance abuse by the child's family or others who have access to the child's home[.]" Tex. Fam. Code Ann. §§ 263.307(b)(7), (8). "[E]ndangering conduct is not limited to actions directed towards the child." In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). "A factfinder may infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent." In re D.M., 452 S.W.3d 462, 471 (Tex. App.-San Antonio 2014, no pet.).
Here, the Department initially moved for Mother and the child to participate in FBS after Father was arrested for domestic violence against Mother. During the initial FBS meeting on March 9, 2022, Mother admitted to continuous use of methamphetamines and heroin. A day later, the Department removed the child and placed him with his current foster family. The child tested positive for drugs two days after the Department removed him. At this point, the child, who was sixteen months old, was developmentally delayed for his age because he was unable to walk or talk and had just begun to crawl. See Tex. Fam. Code Ann. § 263.307(b)(1) (listing "the child's age and physical and mental vulnerabilities" as a factor to be considered by the trial court in determining the child's best interest).
The trial court heard testimony that one of the Department's primary concerns was Mother's inability to parent due to her drug addiction. See In re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.-San Antonio 2017, pet. denied) ("[A child's] young age[] [renders him] vulnerable if left in the custody of a parent who is unable or unwilling to protect [him] or attend to [his] needs."). Norma Lailson, the Department's caseworker, testified that Mother tested positive for drugs on three of the twenty-two tests she was asked to take. See In re K.M., No. 04-08-00037-CV, 2008 WL 2923655, at *2 (Tex. App.-San Antonio July 30, 2008, pet. denied) (mem. op.) (holding a parent's illegal substance abuse "places her children in emotional and physical danger"). Mother most recently tested positive for methamphetamines on October 25, 2022, a little over two months before trial. According to Lailson, Mother missed eight drug tests. Two of the missed drug tests were due to Mother's incarceration in September 2022. Some of the drug tests were missed because Mother did not have transportation, but some of these missed tests were made up a few days after the tests were requested. Mother missed other drug tests because she would arrive late to the testing facility even though Mother knew she had to arrive by a certain time to take the test. Mother missed her most recent drug test on December 20, 2022, and she did not make up the drug test. See In re A.M.L., No. 04-19-00422-CV, 2019 WL 6719028, at *4 (Tex. App.-San Antonio Dec. 11, 2019, pet. denied) (mem. op.) ("The trial court also could have reasonably inferred that [a parent's] failure to appear for drug testing indicated that [the parent] was avoiding testing because [the parent] was using drugs.").
Lailson testified that Mother used methamphetamines and heroin throughout the pendency of the case. Mother admitted to Lailson that she relapsed and used methamphetamines the week before trial and Mother conceded in her testimony that she has had several relapses and has continued to use drugs throughout the pendency of the case. See In re A.N., No. 04-19-00584-CV, 2020 WL 354773, at *3 (Tex. App.-San Antonio Jan. 22, 2020, no pet.) (mem. op.) ("Illicit drug use is relevant to multiple Holley factors, including the children's emotional and physical needs now and in the future, the emotional and physical danger to the children now and in the future, Mother's parental abilities, the stability of Mother's home, and the acts or omissions which may indicate an improper parent-child relationship.").
Lailson testified that Mother participated in several drug assessments and nearly every assessment recommended Mother participate in inpatient drug treatment. Mother initially refused to avail herself of inpatient drug treatment. Instead, Mother chose to participate in outpatient drug treatment; however, she did not successfully complete the outpatient drug treatment.
Mother claimed she did not want to participate in inpatient drug treatment because she thought she might lose her housing. Lailson, however, testified that in September or October 2022, she called the charity that provided Mother with housing and was told Mother would not lose her housing if she was admitted to an inpatient drug treatment program. Mother also stated she had a difficult time finding an inpatient drug treatment program in Bexar County that would admit her because she was currently taking methadone. Lailson confirmed Mother had trouble finding an inpatient drug treatment program because she was using methadone, but she also testified the Department provided everything Mother needed to obtain inpatient drug treatment. According to Lailson, Mother did not start asking about inpatient drug treatment until December 12, 2022, only three weeks before trial. Within this time frame Mother was able to secure a spot in a "transitional home" while she took steps to secure a spot in an inpatient drug treatment program. According to Mother, she had an appointment for an inpatient drug treatment program the day of trial, and there was availability in the program for her. Despite the alleged difficulty to find an inpatient drug treatment program that would accept her, Mother was able to take all the necessary steps to secure inpatient drug treatment for herself within the three weeks preceding the trial. The trial court, as the factfinder, was entitled to assess Mother's credibility and could have reasonably found that Mother's delay to attend inpatient drug treatment was due to her unwillingness to avail herself of this resource rather than her concerns regarding housing and the alleged difficulty finding an inpatient drug treatment program that would admit her. See Tex. Fam. Code Ann. § 263.307(b)(11) (listing "the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time" as a best interest factor considered by the trial court); see also HealthTronics, Inc., 382 S.W.3d at 582 (holding the trial court in a bench trial is the sole judge of the credibility of witnesses and the weight to be given their testimony).
It is unclear whether Mother was prescribed methadone for medical treatment.
The trial court also heard testimony regarding Mother's criminal past, that Mother was incarcerated in September 2022, and that she was on probation due to a charge of possession of illegal substances. See In re S.L.W., No. 04-22-00425-CV, 2023 WL 28451, at *5 (Tex. App.- San Antonio Jan. 4, 2023, pet. denied) (mem. op.) (alteration omitted) ("A parent's criminal activities and history are relevant to a best-interest analysis."); In re J.J.O., No. 04-18-00425-CV, 2018 WL 5621881, at *2 (Tex. App.-San Antonio Oct. 31, 2018, no pet.) (mem. op.) ("Criminal conduct, prior convictions, and incarceration affect[] a parent's life and his ability to parent, thereby subjecting his child to potential emotional and physical danger.").
The Department was also concerned with Mother's continuing relationship with Father, given their history of domestic violence. Mother testified she is no longer in a relationship with Father and only continued to live with him because she could not evict him from her home while COVID-19 tenant protections were in place. Lailson, however, testified that Mother and Father have been in an "on-again, off-again" relationship throughout the case and that Father continues to live with Mother even though they report they are no longer in a relationship. Lailson also stated-although the Department scheduled separate visits with the child for Mother and Father- they would arrive at the visiting center together. Father would wait in the lobby while Mother visited the child, and Mother would wait in the lobby while Father visited the child. The trial court could have disbelieved Mother's self-serving testimony that she and Father were separated and could have inferred the parents were still in a relationship. See In re E.A.M.V., No. 04-18-00866-CV, 2019 WL 1923214, at *4 (Tex. App.-San Antonio May 1, 2019, pet. denied) (mem. op.) (explaining a trial court could have disbelieved a parent's testimony, and we defer to the factfinder on witness credibility issues). This evidence is significant because the trial court heard testimony that Father was arrested for domestic violence and failed to complete his service plan, which included domestic violence classes. Mother also failed to complete her domestic violence classes and declined to press charges against Father for the domestic violence perpetrated against her. See In re L.M.W., No. 04-22-00577-CV, 2023 WL 2357706, at *7 (Tex. App.-San Antonio Mar. 6, 2023, pet. denied) (mem. op.) (holding unresolved domestic violence between the parents supports a trial court's finding that termination of parental rights is in the child's best interest).
On the other hand, the trial court heard testimony that the child has been placed with the same foster family since removal. The foster family is meeting the child's needs and working with him to improve his developmental delays. According to Lailson, the child has made progress with the help of his foster parents and Early Child Intervention services. J.K.G. is now walking, signing words, and trying to speak. Lailson opined the child's progress is largely due to the foster mother's work with the child. See In re S.D., 980 S.W.2d 758, 764 (Tex. App.-San Antonio 1998, pet. denied) (holding it was in the children's best interests to place them "in a stable environment where they can receive proper care for their special needs"). Although J.K.G. still exhibits developmental delays, he is currently receiving occupational therapy, physical therapy, and speech therapy to address the delays.
Finally, Lailson testified that Mother is not in compliance with her service plan. Lailson stated she went over the service plan with Mother and filed it with the court. Mother was required to maintain stable housing and employment, participate in a psychological evaluation and follow all recommendations, participate in a drug assessment and follow all recommendations, pass random drug tests, and participate and complete individual therapy, domestic violence classes, and parenting classes. As mentioned above, Mother did not successfully complete drug treatment as recommended by the drug assessment and psychological evaluation, and she either failed or did not take several drug tests. Mother did not complete her individual therapy, nor did she complete her domestic violence classes. The trial court could have reasonably found that Mother's unwillingness to complete her service plan was an indication that termination of Mother's parental rights was in J.K.G.'s best interest. See Tex. Fam. Code Ann.§ 263.307(b)(10) (listing "the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision" as a best interest factor to be considered by the trial court).
The trial court heard ample evidence that the child was removed because of concerns with Mother's illegal drug use and domestic violence between Mother and Father. The testimony at trial showed that Mother had not addressed these concerns because she continued to struggle with her drug addiction, did not successfully complete drug treatment, and continued to have a relationship with Father despite the unresolved domestic violence. Having reviewed the record and considered all the evidence in the appropriate light for each standard of review, we conclude the trial court could have formed a firm belief or conviction that termination of Mother's parental rights is in J.K.G.'s best interest. See id. § 161.001(b)(2); H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d at 573; see also generally In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (recognizing a reviewing court need not detail the evidence if affirming a termination judgment). Accordingly, we hold the evidence is legally and factually sufficient to support the trial court's best-interest finding.
Conclusion
The trial court's order terminating Mother's parental rights to J.K.G. is affirmed.