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declining to address father's challenge to the sufficiency of the evidence to support termination based on section 161.001(b)(P) where the trial court found four additional statutory grounds for termination and father only challenged the sufficiency as to section 161.001(b)(P)
Summary of this case from In re D.G.Opinion
No. 05-16-01098-CV
03-03-2017
IN THE INTEREST OF K.L.M., A CHILD
On Appeal from the 296th Judicial District Court Collin County, Texas
Trial Court Cause No. 296-30084-2015
MEMORANDUM OPINION
Before Justices Francis, Stoddart, and Schenck
Opinion by Justice Schenck
Travis M. ("Father") appeals the trial court's decision to terminate his parental rights with respect to his child K.L.M. In two issues, Father argues there was legally and factually insufficient evidence to support a finding that termination of his parental rights was in the best interest of the child and to support termination pursuant to section 161.001(b)(1)(P) of the Texas Family Code. TEX. FAM. CODE ANN. §§ 161.001(b)(1)(P) (West 2016). For the reasons set forth in this opinion, we affirm the trial court's order terminating Father's parental rights. Because the dispositive issues in this case are settled in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.4.
Section 161.001(b)(1)(P) provides, in relevant part, that the court may order the termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child and failed to complete a court-ordered substance abuse treatment program.
FACTUAL & PROCEDURAL BACKGROUND
On June 19, 2015, the Child Protective Services Division ("CPS") of the Texas Department of Family Protective Services removed K.L.M. from the care of his parents following a report of child abuse of K.L.M.'s half sibling A.M. At the time, K.L.M. was six months old, and A.M. was almost three years old.
On June 22, 2015, the Texas Department of Family and Protective Services (the "Department") filed an Original Petition for Protection of Child(ren), for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship seeking to terminate the parent-child relationships between Father and K.L.M. and between K.L.M.'s mother ("Mother") and K.L.M. The Department asserted ten grounds for terminating Father's parental rights and nine grounds for terminating Mother's parental rights.
On July 18, 2016, the case proceeded to trial before the court. At trial, the Department did not seek to terminate the parent-child relationship between Mother and K.L.M. because Mother had successfully completed her service plan and had been adequately caring for K.L.M. on monitored return since February 2016. The Department sought to terminate Father's parental rights on five of the grounds asserted in its petition, among them using a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of K.L.M., and failing to complete a court-ordered substance abuse treatment program. TEX. FAM. CODE ANN. §§ 161.001(b)(1)(P).
Father did not appear at trial but was represented by counsel. The record reflects Father had not communicated with the CPS conservatorship worker since September 2015, Father's attorney had not been able to contact him for several months, and there were outstanding warrants for his arrest. The Department called the investigating police officer, the CPS investigator, Mother, the CPS conservatorship worker, and the Court Appointed Special Advocate ("CASA") to testify.
Testimony of Detective Foreman
On July 19, 2015, Detective Corey Foreman was assigned a child-abuse case involving K.L.M.'s half-brother A.M. He was dispatched to Children's Medical Center on a report of a child having arrived at the hospital with multiple, severe blunt force injuries. After viewing the child and consulting with the attending physician, Detective Foreman concluded A.M. was the victim of child abuse. A couple of days later, Father admitted to having inflicted the injuries upon A.M. by hitting him multiple times with a belt. While Father did not appear to be under the influence of an intoxicant when Detective Foreman first spoke with him, Father admitted to having smoked marijuana on the day A.M. was injured. Detective Foreman obtained an arrest warrant for Father. He was arrested and charged with injury to a child causing serious bodily injury, a first degree felony.
Testimony of the CPS Investigator
In addition to the police being contacted about the abuse of A.M., CPS was contacted. The referral to CPS initially reported a near drowning incident and later a report of blunt-force trauma consistent with child abuse. CPS assigned investigator Rick Prado, Jr. to the case. When Prado arrived at the hospital, A.M. was on life support, in critical condition, and had a ruptured intestine, a bruised bladder, and some heart damage. The injuries did not appear to be accidental. Prado interviewed the caregivers and observed Father appeared to be detached from A.M. and did not exhibit the type of emotion one would expect with a child in A.M.'s condition. Prado learned K.L.M. was present when A.M. was injured. He testified witnessing such abuse can be detrimental to a child and explained that in evaluating the risk of child abuse, CPS looks at the treatment of the child's siblings.
CPS removed K.L.M. from the home on June 19, 2015, due to the severity of the injuries inflicted on A.M. and concomitant concern that K.L.M. was at high risk for abuse. Prado believed that, by critically injuring A.M. while K.L.M. was present, Father knowingly placed K.L.M. in conditions that endangered his physical and emotional well-being.
Testimony of Mother
Mother acknowledged that K.L.M. was in the home when A.M. was injured. She believes Father got out of control and inflicted the injuries upon A.M. and that he did not intend to injure the child. She was concerned that Father could act the same way with K.L.M., especially since he had not addressed the problem and had not completed the services he was ordered to complete. Mother indicated that Father has a hard time accepting responsibility and that, with outstanding arrest warrants, he would let his fear of going to jail hold him back from doing what he had to do to see his son. She confirmed that Father used marijuana, that he had not paid any child support, and that he had physically abused her following the incident with A.M. While Mother admitted that it would be good for K.L.M. to have a father, she indicated Father is not the kind of parent she wants for K.L.M. Mother is currently employed as a claims adjuster for an insurance company and is in school studying accounting.
Testimony of the CPS Conservatorship Worker
Janelle Barber was the CPS conservatorship worker assigned to K.L.M.'s and A.M.'s cases. On July 14, 2015, she met with Father at the jail where he was incarcerated for the child endangerment involving A.M. She provided him with a Family Plan of Service to address the safety issues that caused the removal of K.L.M. from the care of Father and reviewed the plan with him. The plan set forth the services Father was to participate in, including parenting classes, writing letters to the caseworker inquiring about K.L.M.'s well-being and development, a drug-treatment program, a bonding assessment with K.L.M., individual counseling, anger- management counseling, a psychological evaluation, providing CPS with a list of all of his prescription medications, a batterer's intervention program, a drug-and-alcohol assessment, maintaining suitable housing, obtaining legal employment, and submitting to random drug testing. Father was to provide certifications of completion of services to CPS. CPS encouraged Father to participate in services while incarcerated and to notify the caseworker upon his release from jail. Father acknowledged in writing that he had received the plan.
After Father was released from jail in August 2015, he arranged to meet with Barber to discuss his services, but he failed to show up for the meeting. In early September 2015, Barber sent an email to Father attaching a temporary order and explaining the court-ordered services he was to complete and providing him with a list of the people he was to contact to participate in the services. The temporary order set forth conditions for visitation with K.L.M. There would be no visitation while Father was incarcerated. Thereafter, upon approval of CPS, the visitations were to occur at the CPS office and would be monitored by CPS, or an adult designated by CPS. To initiate the process, Father had to contact CPS and set up an interview. Father did call Barber in September 2015 to discuss visitation. She told him he had to meet with her and requested that Father submit to a drug test. Father did not set up a meeting with Barber and did not submit to a drug test; rather, he told Barber he was out of town. That was the last time Barber heard from Father, although she did continue to try to contact him.
Barber prepared and filed Family Service Plan Evaluations on October 9, 2015, February 2, 2016, and May 17, 2016 to update the court on how the parents were doing on their service plans. She reported that Mother was doing well on her plan and that Father had not made any progress on his. Barber sent copies of her evaluations to Father by email and advised him of the trial date and location.
As to K.L.M. being placed back in the care of Father, Barber was concerned that Father had not engaged in any services, had caused life-threatening injuries to K.L.M.'s sibling, had not contacted her since he inquired about visitation and told her he was out of town, had not inquired about the well-being of K.L.M., had not addressed any aggressive behaviors, and did not appear to have a job or a stable housing environment.
Barber believed Father had knowingly placed K.L.M. in conditions or surroundings that endangered his physical or emotional well-being because Father was the perpetrator of the abuse of A.M. in the presence of K.L.M. Barber concluded Father had constructively abandoned K.L.M. for a period of not less than six months and that Father had demonstrated an inability to provide K.L.M. with a safe environment. She further reported that Father had failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of K.L.M., and that K.L.M. had been in the care of CPS for not less than nine months due to his removal from his parents for abuse or neglect. Father admitted to Barber that he regularly used marijuana. Barber concluded Father used a controlled substance in a manner that endangered the health and safety of K.L.M. and observed that he failed to complete a court-ordered substance-abuse-treatment program. Father was ordered to pay child support and failed to make any payment. Barber recommended termination of the parent-child relationship between Father and K.L.M. and acknowledged if Father's parental rights were terminated, K.L.M. could later be adopted by a man who would truly be his father.
Testimony of the CASA Volunteer
The CASA volunteer for K.L.M. recommended that K.L.M. stay in the care of Mother. The CASA volunteer was concerned about the abuse of A.M. and the fact that, while Father had been released from incarceration in August 2015, he had not made contact with K.L.M. or inquired about his well-being.
Final Order of Termination
At the conclusion of the trial, the trial court found Father's parental rights should be terminated as to K.L.M. and that it is in the best interest of K.L.M. to remain with Mother. This appeal followed.
DISCUSSION
I. Termination of the Parent-Child Relationship
To terminate parental rights, the trial court must make two findings. First, the parent must have committed one of the acts prohibited under section 161.001(b) of the Texas Family Code, and second, the termination of parental rights must be in the child's best interest. TEX. FAM. CODE ANN. § 161.001(b)(1)-(2). Here, the trial court found the Department had proven by clear and convincing evidence that Father has:
knowingly placed or knowingly allowed the child [K.L.M.] to remain in conditions or surroundings that endanger the physical or emotional wellbeing of the child; [Tex . Fam. Code 161.001(b)(l)(D)]
engaged in conduct or knowingly placed the child [K.L.M.] with persons who engaged in conduct that endangers the physical or emotional well-being of the child; [Tex . Fam. Code 161.001(b)(l)(E)]
constructively abandoned the child [K.L.M.] who has been in the permanent or temporary managing conservatorship of the Texas Department of Family and Protective Services for not less than six months, and the department has made reasonable efforts to return the child to the parent, the parent has not regularly visited or maintained significant contact with the child, and the parent has demonstrated an inability to provide the child with a safe environment; [Tex . Fam. Code 161.001(b)(l)(N)]
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 [K.L.M.] 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 161.001(b)(l)(O)]
used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child [K.L.M.], and failed
to complete a court-ordered substance abuse treatment program; [Tex . Fam. Code 161.001(b)(l)(P)]The trial court also found that the termination of Father's parental rights was in the best interest of K.L.M. Id. § 161.001(b)(2).
II. Standard of Review
On appeal, Father raises legal and factual sufficiency issues. In reviewing the legal sufficiency of the evidence supporting an order terminating parental rights, we 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 the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). "To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. In other words, we will disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id.
In a factual sufficiency review, we consider whether the disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. Id. "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, then the evidence is factually insufficient." Id.
III. Sufficiency of the Evidence to Support Best Interest Finding
In his first issue, Father challenges the sufficiency of the evidence to support the trial court's finding that termination of his parental rights is in the best interest of K.L.M. because Mother admitted (1) there was no pattern of family violence, (2) Father's drug use did not affect K.L.M. in a negative way, and (3) the incident involving A.M. was not intentional. Father's argument ignores the totality of the evidence and several factors courts consider when deciding the best interest of the child.
A judicial determination of the best interest of a child is not dependent upon, or equivalent to, a finding that the child has been harmed by abuse or neglect or is in danger of such harm. In re D.W., 445 S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet. denied). Rather, "best interest" is a term of art encompassing a much broader, facts-and-circumstances based evaluation that is accorded significant discretion. In re Lee, 411 S.W.3d 445, 460 (Tex. 2013) (orig. proceeding) (plurality op.); In re D.W., 445 S.W.3d at 925.
In determining whether termination is in the child's best interest, we may consider several factors, including (1) the child's desires, (2) the emotional and physical needs of the child and the emotional and physical danger to the child now and in the future, (3) the parental abilities of the individuals seeking custody, (4) the plans for the child by those individuals and the stability of the home, (5) the plans for the child by the agency seeking custody and the stability of the proposed placement, and (6) the acts or omissions of the parent which may indicate the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omission of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976).
The Holley factors focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). These factors are not exhaustive; some listed factors may not apply to some cases, while other factors not on the list may also be considered when appropriate. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the child's best interest. Id. Conversely, scant evidence relevant to each Holley factor will not support such a finding. Id. The burden of proof is upon the party seeking termination of parental rights. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002).
In this case, we consider the following relevant factors (1) the emotional and physical needs of the child now and in the future, (2) the emotional and physical danger to the child now and in the future, (3) the parental abilities of the person seeking custody, (4) the acts or omissions of the parent that may indicate the parent-child relationship is not a proper one, and (5) the stability of the home or proposed placement.
Beginning with the emotional and physical needs of K.L.M., the record establishes that K.L.M. was very young at the time of the termination trial. He will, therefore, require constant emotional and physical support. He is dependent solely upon a caregiver for his needs and for protection. This need for emotional and physical support will continue for many years. The evidence establishes that Father has not attended to the emotional and physical needs of K.L.M. in any way for over a year and is more interested in evading arrest than caring for his son.
As to the emotional and physical danger to K.L.M. now and in the future, a reviewing court may examine a parent's history with other children in considering the risks or threats of a parent's environment. In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). "Part of [the] calculus includes the harm suffered or the danger faced by other children under the parent's care." Id. In this case, Father admitted to critically injuring A.M., and there is evidence that Father engaged in domestic violence toward Mother. A single act of violence or abuse can constitute a "history" of physical abuse. In re J.N., No. 05-08-01563-CV, 2009 WL 3353629, at *2 (Tex. App.—Dallas Oct. 20, 2009, no pet.) (mem. op.); Alexander v. Rogers, 247 S.W.3d 757, 762-63 (Tex. App.—Dallas 2008, no pet.). Accordingly, the evidence presented establishes a history of family violence which the CPS investigator and case worker believed was detrimental to K.L.M.'s emotional and physical well-being. See In the Interest of A.M., 385 S.W.3d 74, 82-84 (Tex. App.—Waco 2012, pet. denied) (concluding that evidence of mother's history of neglecting and endangering children by exposing them to domestic violence supported trial court's finding that termination was in the child's best interest).
As for the parental abilities of Father, his plans for the child, and the stability of the home, Father has not seen K.L.M., or made any meaningful efforts to see him, since K.L.M. was removed from the home. Rather, the trial court found, and Father does not dispute, that he abandoned the child. Father's lack of determination with respect to K.L.M. is evidenced by the fact that at no time after he spoke with Barber in September 2015 has he attempted to see K.L.M. or even check on how he was doing. Father's whereabouts were unknown, and he did not appear to have a stable home.
As to the acts or omissions of the parent that may indicate the parent-child relationship is not a proper one, a parent's drug use, and failure to comply with a family-service plan support a finding that termination is in the best interest of the child. In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.). See In the Interest of M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (stating parent's noncompliance with service plan may affect fact-finder's consideration of child's best interest); In the Interest of D.C., 128 S.W.3d 707, 717 (Tex. App.—Fort Worth 2004, no pet.) (explaining that parent's failure to complete service plan, provide a stable home, and remain employed support a finding that termination is in the child's best interest). Detective Foreman testified Father admitted to him that he regularly used marijuana and had used marijuana on the date of A.M.'s injuries. While Mother did not think Father's marijuana use endangered K.L.M. or contributed to A.M.'s injuries, she did state that Father used marijuana while he was caring for the children, and the caseworker testified his use endangered K.L.M. The caseworker also testified Father did not complete any aspect of his service plan, including a drug assessment, drug treatment program, counseling sessions, or the requested drug tests. And, we cannot ignore the fact that Father did not appear at trial.
As for the plans for K.L.M., CPS recommended that K.L.M. remain in the care of Mother. The trial judge heard testimony about the great strides Mother has made and how she successfully and timely completed all of her ordered services. Mother is gainfully employed, is going to school, and can financially support K.L.M. K.L.M. has been in the care of Mother on monitored return since February 2016 and has bonded with her. Mother is able to provide a stable home for K.L.M. and can meet his physical and emotional needs.
In sum, after considering the relevant factors under the appropriate standards of review, we hold that the evidence presented at trial and summarized above is legally and factually sufficient to reasonably establish a firm belief or conviction that termination of Father's parental rights is in K.L.M.'s best interest. See TEX. FAM. CODE ANN. § 106.001(2); Holley, 544 S.W.2d at 371-72. We overrule Father's first issue.
IV. Sufficiency of the Evidence to Support Termination Pursuant to subsection 161.001(b)(1)(P) of the Texas Family Code.
In his second issue, Father challenges the sufficiency of the evidence to support termination of his parental rights based on subsection 161.001(b)(1)(P) of the Texas Family Code.
The trial court's termination order was based on at least five predicate violations (section 161.001(b)(1) (D), (E), (N), (O), and (P)), and on a best-interest-of-the-child finding under section 161.001(b)(2). If multiple predicate violations are found by the trial court as a basis for termination, we will affirm on any one violation that is established by clear and convincing evidence. See In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.).
In his second issue, Father challenges the sufficiency of the evidence to support termination on only one of the predicated violations, that being the use of a controlled substance violation. When, as here, Father does not challenge an independent ground that may, under the record presented, support the judgment that he seeks to reverse, this Court need not address the challenged ground and may rely on the unchallenged findings to uphold the trial court's decision. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (holding that father's failure to challenge sufficiency of evidence to support finding under one subsection of section 161.001(1) made it unnecessary—when best interest finding had been made—to address father's challenges to other grounds for termination); Fletcher v. Dep't of Family & Protective Servs., 277 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (holding that because mother's appeal challenged only three of the six grounds for termination found by the trial court, and because any of the unchallenged findings—along with the best interest finding—would support the order of termination, it was unnecessary to address mother's issues challenging only three of the grounds). Because Father does not challenge on appeal the independent grounds under subsections (D), (E), (N), and (O) of section 161.001(b)(1) on any one of or all of which the trial court may have based its decision to terminate Father's parental rights, we do not address the unchallenged findings or the ground raised in his brief. In re L.A.S., No. 10-16-00122-CV, 2016 WL 4399965, at *1 (Tex. App.—Waco Aug. 17, 2016, no pet.). Accordingly, we overrule Father's second issue challenging the termination under section 161.001(b)(1)(P). See, e.g ., Fletcher, 277 S.W.3d at 64.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 161098F.P05
JUDGMENT
On Appeal from the 296th Judicial District Court, Collin County, Texas
Trial Court Cause No. 296-30084-2015.
Opinion delivered by Justice Schenck. Justices Francis and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee recover her costs of this appeal from appellant. Judgment entered this 3rd day of March, 2017.