Opinion
NO. 01-15-00885-CV
03-24-2016
IN THE INTEREST OF J.A.O., A CHILD
On Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2014-05229J
MEMORANDUM OPINION
This is a parental-termination case. The mother appeals the trial court's order terminating her parental rights to James, her only child. She argues that legally and factually insufficient evidence exists to support termination under Subsections (E) and (O) or the trial court's finding that termination is in James's best interest.
The mother will be referred to as Mother and J.A.O. will be referred to by the pseudonym James, both for their privacy and for ease of reading. --------
We affirm.
Background
The Department of Family and Protective Services first became involved with this family on a referral that Mother was "drinking and gets physically aggressive towards the child by punching him in the stomach and back." There was a second referral two months later that Mother was leaving James, who was five years old at the time, home alone. James had walked to a neighbor's house on two such occasions, stating that no adults were home and asking for help. On another occasion, he "snuck out of a window to go [to] the neighbor's home."
Mother tested positive for marijuana and, in the caseworker's opinion, failed to understand the danger of leaving a young child home alone. James was temporarily placed with three different relatives, but each placement resulted in him being returned to the Department. James was eventually placed with a foster family.
Mother began services with the Department. She was ordered to submit to and pass random drug tests; complete substance abuse, individual, and group therapy; attend parenting classes; and other tasks. She completed some of the requirements, but she failed to complete the substance-abuse therapy. She also violated the service plan by testing positive for cocaine multiple times. The levels of cocaine in her system did not consistently decline; on one occasion, the level increased from one failed test to the next. She also refused a hair-follicle test, saying that she was going to "go bald" from all of the testing. She passed multiple urine drug tests but never appeared within the 24-hour window allowed for those tests.
The caseworker testified about her interviews with James. He reported that he was often left home alone. He revealed that his mother and her boyfriend would "spank" him with a phone charger and belt "all over" "numerous times." He told the caseworker, while "break[ing] down": "[P]lease don't let me go back there. I don't want to be hurt again." He reported to the caseworker that Mother told him to say that he wanted to be returned to his mom but confirmed that this was not what he really wanted. The caseworker report that James would regress "[i]n a bad way" following visits with Mother.
The Department sought to terminate Mother's parental rights based on the lack of in-home supervision, multiple positive drug-test results, and the child's expressed desire not to be returned to Mother.
Mother testified that it was a "lie" that she hit her son. She said that James told her that he wanted to be with her and not with his foster parents. She also claimed that she had "done everything" under her service plan. Mother testified that she is in a 12-step program for sobriety but could not remember where she was in the progression. Mother testified that she did not leave James home alone. Instead, she left him with her boyfriend, who later left James unattended without informing Mother. She also testified that, when she used drugs in the past, it was because her "friends" had put the drugs in her drink without her realizing it. In other words, she denied personal responsibility for his lack of supervision and her past drug use.
James's foster mother testified. She and her husband wished to adopt James. When James first came to live with them, he had abandonment fears. Also, he had been doing poorly in school: even though he attended summer school after kindergarten year, he had to repeat first grade. She has worked diligently with him, and he now makes "all A's and B's" in his second year of first grade. She also reported that they give him "[a] lot of attention."
The trial court found that the Department had established by clear and convincing evidence a basis for termination under Subsections (E) and (O) and that termination was in James's best interests.
Mother timely appealed.
Standard of Review
A parent's rights to the "companionship, care, custody, and management" of his or her children are constitutional interests "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). A termination decree is final, irrevocable, and permanently divests the parent of all legal rights, privileges, duties, and powers with respect to the parent-child relationship except for the child's right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Id. However, "the rights of natural parents are not absolute" and "the rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). Recognizing that a parent may forfeit her parental rights by her acts or omissions, the primary focus of a termination suit is protection of the child's best interests. Id.
The burden of proof in termination cases is "clear and convincing evidence." In re J.F.C., A.B.C., and M.B.C., 96 S.W.3d 256, 263 (Tex. 2002) (citing Santosky, 455 U.S. at 769); TEX. FAM. CODE ANN. § 161.001(b). "'Clear and convincing evidence' means 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. This is an intermediate standard that falls between "preponderance of the evidence" used in ordinary civil proceedings and "reasonable doubt" used in criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).
When the legal sufficiency of the evidence supporting the termination of parental rights is challenged, the reviewing court looks at all the evidence in the light most favorable to the termination finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). The court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266. It should disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266. If, after conducting a legal sufficiency review of the record evidence, the court determines that no reasonable factfinder could have formed a firm belief or conviction that the matter to be proved was true, the court must conclude that the evidence on that matter is legally insufficient. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.
Only when the factual sufficiency of the evidence is challenged does the reviewing court review disputed or conflicting evidence. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266. The evidence is factually insufficient in a parental rights termination case if, 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. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266. The court of appeals should "explain in its opinion 'why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding.'" In re J.O.A., 283 S.W.3d at 345; see In re J.F.C., 96 S.W.3d at 266-67.
A single predicate finding under Section 161.001(b)(1) of the Family Code is sufficient 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 355, 362 (Tex. 2003) (affirming termination decree based on one predicate without reaching second predicate found by factfinder and challenged by appellant). Thus, if multiple predicate grounds are found by the trial court, we will affirm on any one ground because only one is necessary for termination of parental rights. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
Statutory Bases for Termination
We begin by considering whether the trial court erred by concluding that termination was warranted under Subsection (O).
An individual's parental rights may be terminated under Subsection (O) if (1) the Department has been the child's temporary managing conservator for at least nine months, (2) the Department took custody of the child as a result of an emergency removal for child abuse or neglect, (3) a court issued an order establishing the actions necessary for the parent to obtain the return of the child, and (4) the parent did not comply with the court order. TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (West Supp. 2015); In re S.M.R., 434 S.W.3d 576, 584 (Tex. 2014).
The trial court ordered Mother to comply with her Department Family Service Plan, which specified the following tasks:
Cooperate with CPS and follow all recommendations for Family Plan of Services;
Provide safe and stable housing and employment;
Participate fully in psychosocial evaluation to address emotional or mental needs and follow all recommendations, including any individual therapy, family therapy, and/or group therapy;
Refrain from engaging in any illegal criminal activities;
Submit to random drug testing on the same day requested and pass the drug tests, with the understanding that a "no show" is considered a positive test result;
Successfully participate and complete parenting classes; and
Actively participate in a substance abuse assessment and follow all recommendations.
There was evidence that Mother failed five drug tests between December 2014 and June 2015. The quantity of cocaine detected in the tests did not consistently decrease over this time: the quantity detected in a hair-follicle test in March was higher than that detected two months earlier. Accordingly, the evidence refutes any suggestion that Mother might have been continuing to fail due to earlier drug usage. In addition to failing multiple tests, she refused testing at least once, in August 2015, only two months before the termination trial.
Mother was provided a location to attend substance-abuse therapy, but the provider dropped her from services due to multiple absences. She began therapy with another counselor in August 2015, and that counselor testified that he was pleased with her progress; however, she was unable to complete the therapy before trial. The second counselor confirmed that Mother admitted to cocaine use at least once within the previous year. She also admitted that she had left her son home alone.
We conclude that there is legally and factually sufficient evidence to support a firm belief or conviction that Mother failed to comply with the court-ordered service plan. See In re C.M.C., No. 14-12-00186-CV, 2012 WL 3871359, at *5 (Tex. App.—Houston [14th Dist.] Aug. 30, 2012, pet. denied) (mem. op. on reh'g) (concluding evidence was legally and factually sufficient to terminate based on caseworker's testimony regarding parent's failure to comply with family service plan). She did not complete her services, and she failed multiple drug tests.
Mother's parental rights were also terminated under Subsection (E), which permits termination on clear and convincing evidence that a parent has engaged in conduct that endangers the physical or emotional well-being of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (West Supp. 2015). While only one basis for termination must be proven, we note that there was ample evidence that Mother left her five year-old home alone more than once, which would support termination on this ground as well. We turn now to the best-interest evidence.
Best Interest of the Child
In addition to a predicate violation, the Department must establish by clear and convincing evidence that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2015). There is a strong presumption that the best interest of the child will be served by preserving the parent-child relationship. In re J.F.C., 96 S.W.3d at 294; see TEX. FAM. CODE ANN. § 153.131(b) (West 2014).
Because of the strong presumption that maintaining the parent-child relationship is in the best interest of the child and the due process implications of terminating a parent's rights without clear and convincing evidence that termination is in the child's best interest, "the best interest standard does not permit termination merely because a child might be better off living elsewhere. Termination should not be used to merely reallocate children to better and more prosperous parents." In re W.C., 98 S.W.3d 753, 758 (Tex. App.—Fort Worth 2003, no pet.); see In re E.N.C., 384 S.W.3d 796, 809 (Tex. 2012).
The factfinder may consider a number of factors to determine the best interest of the child, including the desires of the child, the present and future physical and emotional needs of the child, the present and future emotional and physical danger to the child, the parental abilities of the people seeking custody, programs available to assist those people in promoting the best interest of the child, plans for the child by those people or by the agency seeking custody, the acts or omissions of the parent that may indicate that the existing parent-child relationship is not appropriate, and any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
In some cases, undisputed evidence of only one factor may be sufficient to support a finding that termination is in the best interest of the child; in other cases, there could be "more complex facts in which paltry evidence relevant to each consideration mentioned in Holley would not suffice" to support termination. In re C.H., 89 S.W.3d at 27. Our "best interest" analysis is not limited to these Holley factors; other factors may be considered. Holley, 544 S.W.2d 372; In re C.H., 89 S.W.3d at 27.
The caseworker testified that, when the Department first intervened, Mother did not appear to appreciate the danger involved in leaving a five year-old home alone. Mother's drug counselor testified that she admitted to having previously left James home alone in their discussions. Since those events, Mother successfully completed parenting classes. Despite the evidence that she had left James alone in the past, she testified that she had never done so. The Holley factor test includes a review of the parent's acts and omissions as well as any excuses for them. 544 S.W.2d at 371-72. Mother's efforts to deny her actions and downplay any responsibility for what occurred supports the trial court's best-interest finding.
Additionally, evidence that James was failing school while in Mother's care but was able to rapidly improve his grades while under his foster mother's care and tutoring supports the trial court's best-interest finding.
Moreover, there was evidence that James made an outcry about physical abuse by Mother and her boyfriend. Mother denied the allegation and asserted that James had "lied," but the trial court, as factfinder, was free to disbelieve her testimony. See Rosenblatt v. Freedom Life Ins. Co. of Am., 240 S.W.3d 315, 319 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (stating general rule that factfinder may believe all, part, or none of witness's testimony but cannot ignore undisputed testimony "that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted." (quoting City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005))).
The caseworker testified that James clearly and adamantly requested that he not be returned to his mother because he did not was to be "hurt again." The child's desires are relevant under our Holley multi-factor analysis. 544 S.W.2d at 371-72.
Also relevant are the plans for the child if not reunified with a parent. See id. There was testimony from the Department caseworker and the foster mother that James was happy and thriving with his foster parents, who wished to adopt him. The foster parents have no other children. The foster mother planned to be at home with James to care for him outside of school hours. And they sought out extra-curricular activities for James's enjoyment. The foster mother also demonstrated an ability to identify and address James's needs, such as extra tutoring in weak school subjects and taking steps to alleviate his nightmares and abandonment issues.
Finally, the attorney ad litem stated that termination was in James's best interests.
We conclude that there is legally and factually sufficient evidence to support a firm belief or conviction that the Holley factors support termination. Furthermore, the trial court did not err by concluding from this evidence that termination was in James's best interest.
Conclusion
Having concluded that the evidence is legally and factually sufficient to affirm the trial court's ruling, we overrule Mother's challenges to the termination order and affirm.
Harvey Brown
Justice Panel consists of Justices Bland, Brown, and Lloyd.