Opinion
04-22-00868-CV
05-31-2023
IN THE INTEREST OF K.E.A., M.J.C. AND M.J.C., Children
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2021-PA-00105 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
AFFIRMED
L.S. appeals the trial court's order terminating her parental rights to her children K.E.A. (born 2007), M.J.C. (born 2014), and M.J.C. (born 2016). L.S. argues the evidence is legally and factually insufficient to support the trial court's finding that termination is in the best interests of her children. We affirm.
To protect the privacy of the minor children, we use initials to refer to the children, their biological parents, and related individuals. Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Background
On January 19, 2021, the Texas Department of Family and Protective Services filed an original petition to remove the children from L.S.'s care. The Department became involved after a report of domestic violence against L.S. witnessed by the children. The Department originally sought reunification. As a condition of reunification, the Department created a family service plan requiring L.S. to, inter alia, secure safe and stable housing and provide the Department with a copy of the lease; secure employment and provide the Department with pay stubs; attend parenting classes; undergo a drug assessment; follow through with any treatment recommended by such assessment; submit to random drug testing; complete a family violence course; attend individual therapy; undergo a psychological evaluation; and establish a positive support system. L.S. thereafter tested positive for drugs, resulting in the Department seeking removal of the children. The Department ultimately pursued termination of L.S.'s parental rights.
The children's respective biological fathers did not appeal the termination of their parental rights.
On October 17, 2022 and November 18, 2022, the trial court held a two-day bench trial. The trial court heard testimony from ten witnesses: (1) the Department's original caseworker, India Doromal; (2) Department investigator Michael Palacios; (3) the Department's caseworker after it obtained temporary managing conservatorship, Carol Ann Saldana; (4) the CASA volunteer; (5) L.S.'s friend, A.S.; (6) L.S.'s brother, N.S.; (7) L.S.'s counselor, Teresa Jackson; (8) a licensed chemical dependency counselor for Lifetime Recovery, Sylvia Noelle; (9) a diagnostic technician responsible for L.S.'s urinalysis and hair follicle testing, Monique Momand; and (10) L.S. After the conclusion of trial, the court signed an order terminating L.S.'s parental rights pursuant to section 161.001(b)(1)(N), (O) and (P) and its finding that termination of L.S.'s parental rights was in the best interests of the children. L.S. appealed.
Analysis
L.S. only challenges the legal and factual sufficiency of the evidence on which the trial court relied to conclude that termination was in the best interests of the children.
Standard of Review
The involuntary termination of a natural parent's rights implicates fundamental constitutional rights and "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." In re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.-San Antonio 2017, pet. denied) (internal quotation marks omitted). "As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent." Id. The Department had the burden to prove, by clear and convincing evidence, both that a statutory ground existed to terminate L.S.'s parental rights and that termination was in the best interests of the children. Tex. Fam. Code § 161.206; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). "'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 § 101.007; In re S.J.R.-Z., 537 S.W.3d at 683.
When reviewing the sufficiency of the evidence supporting a trial court's order of termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). To determine whether the Department presented clear and convincing evidence, a legal sufficiency review requires us 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." Id. at 266. We "assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." In re R.S.-T., 522 S.W.3d 92, 98 (Tex. App.-San Antonio 2017, no pet.). "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." In re J.F.C., 96 S.W.3d at 266. Nevertheless, "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." In re S.L.M., 513 S.W.3d 746, 748 (Tex. App.-San Antonio 2017, no pet.). If a reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then the evidence is legally sufficient. Id. at 747.
In contrast, in conducting a factual sufficiency review, we must review and weigh all the evidence, including the evidence that is contrary to the trial court's findings. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). We consider whether the disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the challenged finding. In re J.F.C., 96 S.W.3d at 266. The evidence is factually insufficient only 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." Id.
In both legal and factual sufficiency review, the trial court, as factfinder, is the sole judge of the weight and credibility of the evidence. In re M.G., No. 04-20-00216-CV, 2020 WL 6928390, at *2 (Tex. App.-San Antonio Nov. 25, 2020, no pet.) (mem. op.). We must defer to the factfinder's resolution of disputed evidentiary issues and cannot substitute our judgment for that of the factfinder. See, e.g., In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (factual sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency).
Best Interests
Applicable Law
There is a strong presumption that a child's best interest is served by maintaining the relationship between a child and the natural parent, and the Department has the burden to rebut that presumption by clear and convincing evidence. See, e.g., In re R.S.-T., 522 S.W.3d at 97. To determine whether the Department satisfied this burden, the Texas Legislature has provided several factors for courts to consider regarding a parent's willingness and ability to provide a child with a safe environment, and the Texas Supreme Court has provided a similar list of factors to determine a child's best interest. Tex. Fam. Code § 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
These factors include, inter alia: "(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, the child's parents, other family members, or others who have access to the child's home; (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 consisting of an extended family and friends is available to the child." Tex. Fam. Code § 263.307(b).
Those factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the 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 those individuals to promote the best interest of the child; (6) the plans for the child by these individuals or the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371- 72 (Tex. 1976).
A best interest finding, however, does not require proof of any particular factors. See In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *5 (Tex. App.-San Antonio Apr. 29, 2015, no pet.) (mem. op.). Neither the statutory factors nor the Holley factors are exhaustive, and "[e]vidence of a single factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest." In re J.B.-F., No. 04-18-00181-CV, 2018 WL 3551208, at *3 (Tex. App.-San Antonio July 25, 2018, pet. denied) (mem. op.). "A trier of fact may measure a parent's future conduct by his past conduct [in] determin[ing] whether termination of parental rights is in the child's best interest." In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). Evidence that proves a statutory ground for termination is also probative on the issue of best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Finally, drug use can destabilize the home and expose children to physical and emotional harm if not resolved. See, e.g., In re K.J.G., 2019 WL 3937278, at *8 (Tex. App.-San Antonio Aug. 21, 2019, pet denied).
Application
On appeal, L.S. contends the Department failed to provide sufficient evidence to justify termination of her parental rights based on the best interests of the children. She argues the children's alleged expressions of a desire for reunification with L.S. should control in the best interest analysis.
Department caseworker India Doromal became involved with the children after a referral for alleged domestic violence by one of the fathers, R.M.C., directed at L.S. that occurred in front of M.J.C. and M.J.C. Doromal established a family plan for L.S. Although L.S. completed some of the required services, she did not complete all services required in her plan. See In re C.H., 9 S.W.3d at 28 (evidence proving a statutory ground for termination is probative on the issue of best interest); Tex. Family Code § 161.001(b)(1)(O) (authorizing termination for failure to comply with court-ordered service plan).
During the pendency of the case, the Department attempted reunification with L.S. The Department's safety plan required 24/7 supervision. At that time, L.S. initially resided with family but was later transient. While L.S. resided with family, she would either refuse outright or require exclusively virtual supervision when the Department tried to visit the children. While L.S. was transient, she would refuse to inform the Department of her location and would only allow virtual visitations. According to Doromal, this was insufficient to assess the children's safety when placed with L.S. Because L.S. moved multiple times during the six-month period that Doromal supervised the attempted reunification, Doromal expressed concern about the lack of stability.
Moreover, during the attempted reunification, the children did not attend school. The youngest child was not enrolled in school. According to L.S., the other children were prohibited from attending school virtually because of technical issues. Over six months, K.E.A. missed 54 days of school and attended only three days in all of September 2020. During the monitored return period, Saldana also testified that L.S. attempted to leave Texas with the children in violation of the trial court's order.
L.S. tested positive for methamphetamines after the children came to the Department's attention. L.S. continued to use drugs during the pendency of the case: Urinalysis tests admitted at trial reflected positive methamphetamine results on July 7, 2022 and October 17, 2022 (post-dating her successful discharge from drug treatment). She also failed to report for multiple drug tests- Saldana testified to at least three missed drug tests. See In re K.C.B., 280 S.W.3d 888, 895 (Tex. App.-Amarillo 2009, pet. denied) ("The trial court may infer from a refusal to take a drug test that appellant was using drugs."). As a result of his investigation, Palacios testified that L.S. denied drug use, but that he believed L.S. was dishonest about her use of illegal drugs and that she was "playing games." And during a recent follicle testing, Momand testified that L.S. attempted to choose specific hair strands for follicle testing that Momand believed to be fake hair.
L.S. testified that she could not remember the last time she used methamphetamines, but she could not recall her sobriety date. Prior to being advised by counsel of her Fifth Amendment right to avoid self-incrimination, she admitted to selling methamphetamines in 2021, but claimed she stopped when the case began. The trial court could have disbelieved L.S.'s testimony that she was sober as well as her explanation that she was "framed" by the Department and that Momand (the owner of the diagnostic lab) was "messing" with her tests to obtain positive results. Because drug use can destabilize the home and expose children to physical and emotional harm if not resolved, its use weighs in favor of termination. See, e.g., In re K.J.G., 2019 WL 3937278, at *8 (Tex. App.-San Antonio Aug. 21, 2019, pet denied).
Because L.S.'s service plan required drug testing and abstinence from drug use and alcohol abuse, her continued use of methamphetamines violated the terms of her service plan. The trial court terminated on subsection (O) and (P) grounds. See Tex. Family Code § 161.001(b)(1)(O) (failure to comply with court-ordered service plan), (b)(1)(P)(ii) (continued use of controlled substances). L.S.'s failure to comply with her service plan and continued methamphetamine use further supports a finding that termination was in the best interests of the children. See In re S.B., 207 S.W.3d 877, 888 (Tex. App.-Fort Worth 2006, no pet.).
The trial court also considered evidence that L.S. could not provide for the children's physical and emotional well-being. During the pendency of the case, L.S. refused to inform the Department of where she lived. At trial, L.S. admitted she did not then have a place to live. See In re M.L.C., No. 04-17-00459-CV, 2017 WL 6597828, at *6 (Tex. App.-San Antonio Dec. 27, 2017, pet. denied) (lack of stable employment and housing supports finding that parent cannot provide for child's physical and emotional well-being). She also did not provide any evidence of her employment until the Friday before trial, and the evidence she provided demonstrated part-time employment for one month-September 2022, the month before trial started. At trial, L.S. testified that she no longer worked at that job but just secured a new, full-time job at a hospital.
K.E.A. is currently placed with her maternal uncle, N.S. While placed with N.S., her school performance has significantly declined. N.S. attributes the decline to his belief that K.E.A. stays up late at night talking to L.S. on a phone that N.S. did not provide her. According to N.S., K.E.A.'s attitude noticeably changes after interacting with L.S.-she becomes withdrawn, stays in her room, and does not speak. Saldana described the relationship between K.E.A. and L.S. as "toxic." According to Saldana, when K.E.A.'s contact with L.S. was limited, she was a "different child," who was "more vocal" about what she wanted and expressed goals. However, the improvement in K.E.A. disappeared after K.E.A. again obtained access to a cell phone. According to the CASA volunteer, K.E.A. did not suffer attendance issues and maintained good grades when she was not in contact with relatives. Although K.E.A. expressed a desire for reunification with her mother, she acknowledged that she is fine staying with N.S. if that is not possible. The trial court could have believed that N.S. was meeting all of K.E.A.'s needs.
M.J.C. and M.J.C. are currently placed in a foster home in Conroe. Saldana testified that they have done "really well" at the foster home; have not exhibited behavioral issues at school; and the foster parents are willing to adopt. The CASA volunteer testified M.J.C. and M.J.C. were very well taken care of in their foster home; in her most recent visit before trial, they were very clean and happy. Their current placement in a stable and nurturing environment with a planned adoption further supports the trial court's finding that termination is in the children's best interests. See In re A.M.M., No. 04-19-00806-CV, 2020 WL 2139308, at *4 (Tex. App.-San Antonio May 6, 2020, pet. denied).
After reviewing the evidence under the appropriate standards of review, we conclude a reasonable factfinder could have formed a firm belief or conviction that termination of L.S.'s parental rights was in the best interests of the children. In re J.F.C., 96 S.W.3d at 266. We therefore hold legally and factually sufficient evidence supports the trial court's best interest finding, and we overrule L.S.'s arguments to the contrary.
Conclusion
We affirm the trial court's order of termination.