Opinion
No. 04-16-00823-CV
05-03-2017
IN THE INTEREST OF J.L.C., a Child
MEMORANDUM OPINION
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 15-1619-CV
Honorable Thomas Nathaniel Stuckey, Associate Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Julian appeals the trial court's termination of his parental rights to J.L.C. He argues the evidence is legally and factually insufficient to support the trial court's findings of grounds for termination and that termination is in J.L.C.'s best interest. We affirm the trial court's judgment.
To protect the identity of the minor child, we refer to the child's parent by his first name and to the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
BACKGROUND
The Department of Family and Protective Services filed a petition for conservatorship of J.L.C. and for termination of Julian's parental rights. The Department alleged Julian constructively abandoned J.L.C., failed to complete his court-ordered family service plan, and knowingly engaged in criminal conduct resulting in a conviction, imprisonment, and an inability to care for J.L.C. for at least two years. The Department also alleged termination of Julian's parental rights is in J.L.C.'s best interest. The trial court held a bench trial, at which J.L.C.'s mother Cynthia, caseworker Gina Martinez, and Julian testified.
The Department also sought other relief, but this appeal concerns only the termination of Julian's parental rights to J.L.C.
The Department also alleged numerous other grounds for terminating Julian's rights.
Cynthia testified J.L.C. was eight years old at the time of trial, and Julian was not present when J.L.C. was born, despite his knowing she was pregnant. Cynthia stated that when J.L.C. was one year old, Julian saw J.L.C. approximately three times and he has not since seen the child. She further stated that before the Department filed suit, J.L.C. did not know Julian's name, what he looked like, or that he was her father. She testified Julian never provided any money, diapers, food, or clothing to support J.L.C. Cynthia told another man he was the father, she did not tell Julian he was J.L.C.'s father, and she did not allow Julian to visit J.L.C. Cynthia also testified she did not want J.L.C. to have a relationship with Julian while he was in prison because it would not be in J.L.C.'s best interest.
Caseworker Martinez testified Julian was incarcerated, and he did not complete his court-ordered counseling or psychological evaluation. However, Julian wrote to her explaining the required services were not available to him at his particular prison unit. Martinez testified J.L.C. considered another man to be her father. She further testified Julian had an extensive criminal background that included charges of burglary, injury to a child, and manufacturing or delivery of a controlled substance. Although Martinez first testified Julian had a conviction for sexual assault of a child and would be required to register as a sex offender, she later testified Julian's criminal history did not include sexual assault.
Julian testified that although he suspected J.L.C. was his daughter, he deferred to Cynthia's decision not to allow him to see J.L.C., and instead "wander[ed] off" onto "the streets." He testified that when he suspected J.L.C. was his daughter, he had no stable housing and he was "really living off the street." Julian stated he is currently serving sentences in state prison for two convictions from 2014: one for manufacturing and delivery of crack cocaine and the other for causing bodily injury to a child. Julian explained he did not manufacture or sell drugs, but he possessed crack cocaine for personal use. He also explained he had hit his newborn son, bruising his side. The trial court admitted the judgments of conviction from 2014 showing Julian's sentences included twenty years' confinement for the drug offense and ten years' confinement for causing bodily injury to a child. The judgments provide the sentences shall run concurrently, and Julian testified he is eligible for parole in 2019.
Julian testified he had additional criminal history. He stated he twice spent time in juvenile detention for burglary of a habitation. He also stated he had been incarcerated for misdemeanor assault, unauthorized use of a motor vehicle, and violating a protective order, and he was also incarcerated in a federal penitentiary for several years. Julian testified his current incarceration "really ain't good for [J.L.C.'s] mind [and] her environment." He also testified that after the Department filed the underlying suit, he never wrote to J.L.C., but wrote to Cynthia twice and J.L.C.'s grandmother once to ask about J.LC. He explained he did not write more often because he was "going through lockdown services" in prison.
The trial court signed a final order terminating Julian's parental rights to J.L.C. The trial court found Julian constructively abandoned J.L.C., failed to comply with the court-ordered provisions of his family service plan, and knowingly engaged in criminal conduct resulting in a conviction and was imprisoned and unable to care for J.L.C. for at least two years. The trial court also found that termination of Julian's parental rights is in J.L.C.'s best interest. The trial court appointed the Department permanent managing conservator, J.L.C. was placed with her maternal great-grandparents, and Cynthia retained possessory conservatorship. Julian timely filed this appeal.
STANDARD OF REVIEW
A judgment terminating parental rights must be supported by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). To determine whether this heightened burden of proof was met, we employ a heightened standard of review to determine whether a "factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). "This standard guards the constitutional interests implicated by termination, while retaining the deference an appellate court must have for the factfinder's role." In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.). We do not reweigh issues of witness credibility but defer to the factfinder's reasonable determinations of credibility. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
A legal sufficiency review requires us to examine 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.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. But we may not simply disregard undisputed facts that do not support the finding; to do so would not comport with the heightened burden of proof by clear and convincing evidence. Id. When conducting a factual sufficiency review, we evaluate "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. The evidence is factually insufficient "[i]f, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction." Id.
GROUNDS FOR TERMINATION
Julian challenges all three grounds for termination the trial court found, but the Department responds only to Julian's challenge to the finding that he knowingly engaged in criminal conduct. A finding of only one ground for termination is necessary to support a judgment of termination. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Section 161.001(b)(1)(Q) provides a ground for termination when a parent "knowingly engaged in criminal conduct that has resulted in the parent's: (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition." TEX. FAM. CODE ANN. § 161.001(b)(1)(Q).
Julian is confined in state prison and serving sentences, the longer of which is twenty years, for two criminal convictions. Julian testified he would be unable to care for J.L.C. while he was in prison. Julian's sentences were imposed in August 2014, and the Department filed its original petition in this case in August 2015. Although Julian testified he will be eligible for parole in 2019, this date of his parole eligibility is not less than two years from the date the Department filed its petition. Furthermore, while evidence of parole may be relevant to determine whether the parent will be released within two years, the mere possibility of parole, which is inherently speculative, does not "prevent[] a [factfinder] from . . . forming a firm belief or conviction that a parent will remain incarcerated for at least two years." See In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam).
Julian contends there is no evidence to support the trial court's finding under subsection (Q) because he did not know J.L.C. was his daughter when he committed those offenses. He argues it would be against public policy for subsection (Q) to apply to someone who did not know he was a parent. Julian testified he probably would not be in prison if he had known J.L.C. was his daughter, suggesting he would not have engaged in criminal conduct if he had known he had a child. But Julian testified he had two other children when he injured his newborn son and possessed crack cocaine. Furthermore, Julian testified he believed J.L.C. was his daughter because she looked like him, but he "wander[ed] off" onto "the streets" and did not determine whether he was indeed J.L.C.'s father. Finally, subsection Q, which only requires knowingly engaging in criminal conduct, "cannot be reasonably read to require a showing that the parent knew he was the child's parent at the time he engaged in the criminal conduct." Smith v. Dep't of Family & Protective Servs., No. 01-07-00648-CV, 2008 WL 2465795, at *6 (Tex. App.—Houston [1st Dist.] June 19, 2008, no pet.) (mem. op.).
We hold a factfinder could reasonably have formed a firm belief or conviction that Julian knowingly engaged in criminal conduct resulting in his conviction, confinement or imprisonment, and inability to care for J.L.C. for at least two years from the date the Department filed the underlying suit. Because the evidence is legally and factually sufficient to support the trial court's finding under subsection (Q), and a finding of only one ground for termination is necessary, we need not address Julian's challenges to the trial court's other findings of grounds for termination. See In re A.V., 113 S.W.3d at 362; see also TEX. R. APP. P. 47.1.
J.L.C.'S BEST INTEREST
A trial court's termination of parental rights must also be supported by a finding that termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001(b)(2). The best-interest determination is a wide-ranging inquiry, and the Texas Supreme Court has set out some factors relevant to the determination:
• the desires of the child;
• the emotional and physical needs of the child now and in the future;
• the emotional and physical danger to the child now and in the future;Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor must be proved to find that termination is in the child's best interest. In re C.H., 89 S.W.3d at 27. Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest—especially when undisputed evidence shows that the parental relationship endangered the child's safety. Id. "Evidence that the parent has committed the acts or omissions prescribed by section 161.001 may also be probative in determining the child's best interest; but the mere fact that an act or omission occurred in the past does not ipso facto prove that termination is currently in the child's best interest." In re O.N.H., 401 S.W.3d at 684 (internal citation omitted). "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.).
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the best interest of the child;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
• any excuse for the acts or omissions of the parent.
The evidence showed J.L.C. did not consider Julian to be her father, and before the Department filed suit, she did not know Julian's name, what he looked like, or that he was her biological father. The only evidence of contact between Julian and J.L.C. was testimony about three occasions when Julian saw J.L.C. at the time she was one year old. Julian had not seen J.L.C. in the seven years before trial. Julian believed J.L.C. was his daughter, but he did not seek to establish paternity and consequently never provided any support for J.L.C., financial or otherwise. Julian acknowledged at trial he would be unable to care for J.L.C. while he was in prison, and Julian and Cynthia testified it would not be in J.L.C.'s best interest to develop a relationship with him while he was in prison. Julian also admitted to using crack cocaine and to having an extensive history of incarcerations for delinquent and criminal conduct, including violence toward a newborn baby. See In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.) (explaining drug abuse and an "inability to maintain a lifestyle free from arrests and incarcerations" may support a best interest finding). Julian correctly notes that no witness expressly stated termination of his parental rights is in J.L.C.'s best interest. Nevertheless, we hold a factfinder who considered all of the evidence could reasonably have formed a firm belief or conviction that termination of Julian's parental rights is in J.L.C.'s best interest.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice