Opinion
No. 04-17-00710-CV
04-23-2018
IN THE INTEREST OF J.J.M., N.Q., L.A.M., N.S.G., and K.S.G., Children
MEMORANDUM OPINION
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-00931
Honorable John D. Gabriel Jr., Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
This proceeding arises out of Cause No. 2016-PA-00931, styled In the Interest of V.E.R.-Q., et al., Children, pending in the 131st Judicial District Court, Bexar County, Texas, the Honorable Norma Gonzales presiding. The termination order in this matter was signed by the Honorable John D. Gabriel Jr., presiding judge of the 285th Judicial District Court, Bexar County, Texas.
This is an accelerated appeal of the trial court's order terminating Appellant Mom's parental rights to her children J.J.M., N.Q., L.A.M., N.S.G., and K.S.G. and Appellant Dad's parental rights to his children, N.S.G., and K.S.G. In their respective appeals, Mom and Dad both contend the evidence is neither legally nor factually sufficient for the trial court to have found by clear and convincing evidence that terminating their parental rights was in their children's best interests. See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2017). Because we conclude the evidence is legally and factually sufficient to support the trial court's finding, we affirm the trial court's order terminating Mom's parental rights to J.J.M., N.Q., L.A.M., N.S.G., and K.S.G. and Dad's parental rights to N.S.G., and K.S.G.
The father of J.J.M., N.Q., and L.A.M. was deceased prior to the Department's involvement and not a part of the proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Between March 14, 2016 and April 29, 2016, the Texas Department of Family and Protective Services received several referrals and hot-line phone calls regarding injuries, including three-year-old child, N.S.G., climbing on a television and falling through a window causing injury to his rib, alleged drug use by Mom and Dad, domestic violence in the home, and ten-year-old, J.J.M., and eight-year-old, N.Q., being physically abused by Dad, locked in their room, and not allowed to attend school. The reports further alleged the children were not being fed at home and the three younger children in the home, L.A.M., N.S.G., and K.S.G., ages four-, three-, and two-years-old respectively, were left alone during the day to care for themselves while Mom and Dad slept.
On April 29, 2016, a Department investigator visited the home. The home was filthy, with a puddle of water in the living room/dining room area, clothes piled on the couch, and a foul smell. There was no food, electricity, or running water in the home. The three children in the home were in dirty clothes and were foul-smelling. N.S.G. had unexplained bruising on her face. Dad appeared to be under the influence of drugs and was acting very erratic. The investigator reported that Mom remained in her bedroom; she was uncooperative and very angry. When neither parent could provide someone to care for the children, the children were removed due to exigent circumstances.
On May 2, 2016, the Department filed its petition to terminate Mom's and Dad's parental rights. Following an emergency order, the Department was named temporary managing conservator of the children.
The case was called for trial on October 18, 2017. After considering the testimony and arguments of counsel, the trial court orally pronounced the termination of Mom's and Dad's parental rights, finding they failed to complete their service plans, see TEX. FAM. CODE ANN. § 161.001(b)(1) (O), and that termination of Mom's parental rights to J.J.M., N.Q., L.A.M., N.S.G., and K.S.G., and the termination of Dad's parental rights to N.S.G., and K.S.G. was in the children's best interests, see id. § 161.001(b)(2). The trial court named the Department as permanent managing conservator of the children.
The pertinent portion of Texas Family Code section 161.001(b)(1) provides as follows:
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child;TEX. FAM. CODE ANN. § 161.001(b)(1)(O).
In their sole issues on appeal, Mom and Dad both contend the evidence is legally and factually insufficient to support the trial court's finding that termination of their parental rights is in their children's best interests.
STANDARDS OF REVIEW
We strictly scrutinize involuntary termination proceedings in favor of the parent. In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.). An order terminating parental rights must be supported by clear and convincing evidence that (1) the parent has committed one of the grounds for involuntary termination as listed in section 161.001(b)(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001; In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2003); see also TEX. FAM. CODE ANN. § 101.007 (West 2014) (meaning "firm belief or conviction as to the truth of the allegations sought to be established"). "There is a strong presumption that the best interest of the child[ren] is served by keeping the child[ren] with [their] natural parent, and the burden is on [the Department] to rebut that presumption." In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). "The same evidence of acts or omissions used to establish grounds for termination under section 161.001[(b)](1) may be probative in determining the best interest of the child[ren]." Id.
A legal sufficiency review requires a court to "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., 163 S.W.3d 79, 85 (Tex. 2005) (quoting J.F.C., 96 S.W.3d at 266). Evidence is factually sufficient if "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); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San Antonio 2004, no pet.). "If, in light of the entire record, [unless] 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, . . . the evidence is factually [sufficient]." J.F.C., 96 S.W.3d at 266.
BASIS FOR TRIAL COURT'S TERMINATION
A. Statutory Violations under the Texas Family Code
The trial court found, by clear and convincing evidence, that both Mom and Dad failed to comply with the provisions of their court-ordered service plans that specifically established the actions necessary for each parent to obtain the return of their children and that such acts or omissions were grounds for termination under subparagraph (O) of section 161.001(b)(1). See TEX. FAM. CODE ANN. § 161.001(b)(1)(O). On appeal, neither Mom nor Dad challenges the trial court's statutory grounds findings.
B. Best Interest of the Child
1. Arguments of the Parties
Mom and Dad both contend the evidence is legally and factually insufficient to support the trial court's finding that termination of their parental rights is in their children's best interests. See id. § 161.001(b)(2).
The State counters that the children were exposed to dangerous and unsanitary living conditions and there were multiple reports that Dad physically abused the children in Mom's presence. Both Mom and Dad suffered from a long history of drug use, with histories of relapsing and failing to follow through with the necessary counseling and required follow up. Neither parent followed the recommendations of the service providers or completed their service plans, had stable employment or housing, or could provide for the children financially. Additionally, there is a significant history of co-dependence between Mom and Dad with evidence of domestic violence.
2. The Holley Factors
The Holley factors, although by "no means exhaustive, [do] indicate a number of considerations which either have been or would appear to be pertinent" to ascertain the best interest of the children:
(1) the child's desires; (2) the child's emotional and physical needs now and in the future; (3) any emotional and physical danger to the child now and in the future;(4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote 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) 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.544 S.W.2d 367, 371-72 (Tex. 1976); see also In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors); TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016).
The absence of evidence of any one factor is not dispositive—especially when undisputed evidence shows that the parental relationship endangered the child's safety. See C.H., 89 S.W.3d at 27; see also In re B.R., 456 S.W.3d 612, 615 (Tex. App.—San Antonio 2015, no pet.); In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). A court "may consider circumstantial evidence, subjective factors, . . . the totality of the evidence[,] . . . the direct evidence[,]" and past conduct. B.R., 456 S.W.3d at 616 (citing In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied)); see also In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (citation omitted). We remain mindful that the trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the Department's witnesses. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (requiring appellate deference to the factfinder's findings); City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
3. Analysis
a. Evidence Regarding Mom, Dad, and Children Prior to Removal
Both parents had an extensive history with drugs. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371-72. Mom began using drugs at the age of twenty-three and both J.J.M. and N.Q. tested positive for cocaine at birth. Dad began using drugs at eight-years-old; the last time he used drugs was approximately two months before the hearing. Both parents attempted treatment, but relapsed and failed to follow the necessary after-treatment, including individual counseling. The Department was involved previously with the family, and at one point interviewed the two older children at school. In each case, the parents worked services, completed classes requested by the Department, and the case was closed. See TEX. FAM. CODE ANN. § 263.307(b)(11), (12); Holley, 544 S.W.2d at 371-72.
b. Evidence Regarding the Children's Removal and Parental Compliance
There were several reports that the younger children were left unsupervised while Mom and Dad slept during the day and the eight- and ten-year-old children were at school. See TEX. FAM. CODE ANN. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. The older children showed poor school attendance, arrived at school late, and reported "having to sneak out" of the house to attend school. The children were "always hungry," reported being beaten, and expressed a desire "not to go home" from school. See TEX. FAM. CODE ANN. § 263.307(b)(5). When the investigator arrived at the home, the home was filthy, there was no food, no electricity, and no running water. All five of the children were reportedly so dirty, the investigator reported a foul-odor coming from the children. The investigator testified that "[t]he lice was so bad you didn't even have to look for it." The three-year-old child had bruises on her face that no one could explain. See id. § 263.307(b)(11), (12); Holley, 544 S.W.2d at 371-72.
When the investigator removed the children from the home, the older children "had no emotional reaction to being taken away from their parents." N.Q. randomly stated that "his parents had told him that someone broke into the house and left a foil of drugs on the dryer, which [N.Q.] had found. And that was the [reason] that they gave him, that someone had broke in and left it on the dryer to set them up." See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371-72.
Although services were provided by the Department, neither parent could financially support the children. See TEX. FAM. CODE ANN. § 263.307(b)(11), (12); Holley, 544 S.W.2d at 371-72. Mom testified that Dad was paying her bills because she could not work while she was finishing services. On cross-examination, Mom acknowledged the classes were three days a week, for one-hour each day, and visitation was for one-hour on Thursday. Dad was also paying for her housing, even though she was no longer living with Dad, and was instead, living with another man. Although Dad was not employed, and his disability was his sole source of income, Dad acknowledged paying for Mom's housing and living expenses. "I gave them [my Section 8 housing], and I walked away." He was living at his sister's house, and sleeping on her couch.
Additionally, neither parent could physically or emotionally care for or protect the children. See TEX. FAM. CODE ANN. § 263.307(b)(11), (12); Holley, 544 S.W.2d at 371-72. Mom testified she completed parenting, psychological evaluation, and domestic violence classes; yet, the evidence showed she failed to learn the necessary coping skills to deal with the normal stresses of parenting or how to manage and meet her family's basic needs. Mom also failed to demonstrate an ability to: protect her five children from future abuse or neglect; provide for her children's clothing or food; or provide a drug-free and safe living environment. See TEX. FAM. CODE ANN. § 263.307(b)(3), (7) (history of abusive or assaultive conduct by child's family); Holley, 544 S.W.2d at 371-72. Even after all of the services provided, Mom still professed the children were removed from her home solely as a result of her lack of electricity, water, and "just not a lot of food."
Dad was diagnosed with bipolar disorder and PTSD, complicated by his drug usage. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72. Although the Department secured inpatient treatment for Dad, he voluntarily discharged himself after five days because he was worried about Mom's welfare. See TEX. FAM. CODE ANN. § 263.307(b)(10), (11); Holley, 544 S.W.2d at 371-72. Although Dad started attending individual therapy, he missed a significant portion and was discharged. More importantly, Dad failed to maintain psychiatric appointments or take his medication. Dad failed to demonstrate or develop a positive support system to assist him with the children if they were returned to him. He also failed to demonstrate an ability to protect his children from future abuse and neglect, demonstrate an ability to remain drug free, or demonstrate an ability to put his children's needs above his needs or Mom's needs. Dad simply failed to show (1) an ability to refrain from the behaviors and activities that brought his children into care or (2) that he could maintain his psychiatric health.
c. Ad Litem Report to the Trial Court
Although none of the children testified at the hearing, their ad litem attorney was asked to provide a report to the trial court. Parental visitation with the younger children was limited to one-hour per week visitation. The record reflects they were at least fifteen minutes late to each visit. As a result, the two youngest children have spent less than fifty hours total with their parents in the last eighteen months. The record is silent regarding any relationship or bond between the children and Mom or Dad. See TEX. FAM. CODE ANN. § 263.307(b)(3); Holley, 544 S.W.2d at 371-72. The attorney reported the two youngest children were in foster home placement and seemed to be well-adjusted. She described the children as young, but "very bright" and "[t]hey seem happy." Although a new placement, the current home is a foster-adopt home and the children are doing well. See TEX. FAM. CODE ANN. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72; see also In re M.A.N.M., 75 S.W.3d 73, 77 (Tex. App.—San Antonio 2002, no pet.) (reiterating "goal of establishing a stable, permanent home for a child is a compelling government interest").
The ad litem attorney also reported on the three older children, placed with a paternal aunt since April of 2017. J.D., 436 S.W.3d at 119-20 ("Stability and permanence are paramount in the upbringing of children."). Although Mom was allowed two-hour visitations, she arrived forty-five minutes to an hour late for each visit. The aunt reported the children are attending school and doing extremely well. They are attending counseling. N.Q. and L.A.M. are involved in baseball; and, J.J.M. plans to try-out for the basketball team. The children are very active, comfortable, and able to open-up to their aunt. They want to stay with their aunt, and she is willing to provide a permanent home. The children ask to see their mother, "but they do not feel safe to return." They would like to maintain a relationship with their younger siblings, but they are happy in their placement, and the aunt is very protective of them. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.); In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
CONCLUSION
Reviewing the evidence under the two sufficiency standards, and giving due consideration to evidence that the trial court could have reasonably found to be clear and convincing, we conclude the trial court could have formed a firm belief or conviction that terminating Mom's parental rights to J.J.M., N.Q., L.A.M., N.S.G., and K.S.G. was in the children's best interests, and terminating Dad's parental rights to N.S.G. and K.S.G. was in their best interests. See J.L., 163 S.W.3d at 85; J.F.C., 96 S.W.3d at 266; see also H.R.M., 209 S.W.3d at 108. Therefore, the evidence is legally and factually sufficient to support the trial court's order terminating Mom's and Dad's parental rights. See J.F.C., 96 S.W.3d at 266; see also H.R.M., 209 S.W.3d at 108.
Accordingly, we overrule Mom's and Dad's sole appellate issues regarding the trial court's termination of their parental rights.
Patricia O. Alvarez, Justice