Opinion
NO. 14-16-00723-CV
03-07-2017
IN THE INTEREST OF L.L.G., P.L.G., AND C.L.G., CHILDREN
On Appeal from the 315th District Court Harris County, Texas
Trial Court Cause No. 2014-05822J
MEMORANDUM OPINION
The trial court terminated the parental rights of M.G. ("Mother") and G.G. ("Father") with respect to their children, Luke, Paige, and Chris, and appointed the Texas Department of Family and Protective Services ("the Department") to be the children's managing conservator. Mother appeals, challenging the sufficiency of the evidence to support the trial court's finding that termination of her parental rights was in the children's best interest. She does not challenge the sufficiency of the evidence to support the findings on the predicate statutory bases for termination, nor does she challenge the Department's appointment as managing conservator. Father does not appeal. Because the termination is supported by sufficient evidence, we affirm the judgment.
Luke, Paige, and Chris are pseudonyms. See Tex. R. App. P. 9.8(b)(2).
BACKGROUND
A. Removal
The Department received a referral in November 2014 alleging Mother was not supervising and was using drugs around twins Luke and Paige, then almost three years old, and eight-month-old Chris. The reporter stated Mother routinely used methamphetamine while the children were in her care. She would lock the children in a room in the house in which they were living, and the twins would climb out the window and wander to a neighbor's home. The referral also mentioned there was a pool in the backyard. Mother was asked but refused to submit to a drug test. The Department removed the children from Mother's care a few days later.
Mother had history with the Department. She had twice been reported to the Department for negligent supervision, and each time she was said to be using drugs. The allegations in the first referral were ruled out. The record indicates the disposition of the second referral was "reason to believe / ruled out."
Following removal, the trial court signed an order requiring both parents to comply with any family service plan by the Department. Mother's service plan identified the tasks and services she needed to complete before the children could be returned to her care. The plan required Mother to submit to random drug testing; refrain from participating in criminal activity or interacting with people who have a history of drug use; submit to a substance abuse assessment and follow the assessor's recommendations; participate in individual therapy and follow the therapist's recommendations; undergo a psychosocial assessment and follow the assessor's recommendations; complete a parenting class; maintain regular contact with the Department; attend and participate in all hearings, permanency conferences, scheduled visitations, and meetings requested by the court or the Department; and maintain contact with her caseworker.
B. Trial
Mother, Father, and Department caseworker Marion Hackett testified at trial. Among the documents admitted into evidence were Mother's 2013 conviction for failure to identify herself to a peace officer, her 2015 indictment for aggravated robbery, the family service plan the Department created for her, her certificate of completion for the Mentoring Moms program, and her attendance sheets for Alcoholics Anonymous / Narcotics Anonymous meetings and a Women and the Law class.
Mother admitted abusing methamphetamine. She said that before the Department removed her children, she used the drug "periodically" and "socially" but never around her children. On the day the Department investigated the November 2014 referral, Mother refused to take a drug test. After her children were removed, Mother smoked or snorted methamphetamine twice a day, every day. A high from methamphetamine lasted five hours, and Mother confirmed she was high most of her waking hours. Her drug habit cost her $20 per day, which she earned by cleaning houses.
Mother was incarcerated at least twice in the year following her children's removal. She was jailed for 22 days in the spring of 2015 for credit card abuse. She was arrested again for credit card abuse on November 10, 2015 and had been incarcerated on that charge for six months at the time of trial. Then, on November 21, Mother was indicted for an aggravated robbery said to have occurred on November 8. Mother and the State had reportedly reached a plea agreement on that charge at the time of trial. The record does not indicate if or how long Mother would remain incarcerated, and therefore unable to take care of her children, under the terms of that agreement.
In the 18 months between her children's removal and trial, Mother visited her children five times. She said she did not believe she was stable enough to be around her children more frequently because she was abusing drugs.
Mother did not attend any court proceedings in this case except trial. She said she was scared to go to court due to her drug addiction and having a warrant for her arrest. The record does not indicate if there was a warrant for Mother's arrest between November 9, 2014, when the children were removed, and November 8, 2015, the day she is alleged to have committed aggravated robbery.
Mother called Hackett once at the beginning of the case and made arrangements to meet to discuss her service plan but did not appear for that meeting. The children's maternal grandmother, who was caring for the children, urged Mother many times to contact Hackett again, but she never did. Mother did not meet the children's guardian ad litem / attorney at litem until the day of trial, though he talked regularly with the grandmother.
Hackett testified Mother failed to complete the requirements of her service plan. Mother did not initiate, let alone complete, the individual therapy, substance abuse assessment, psychosocial assessment, or parenting class required by the service plan. She did not submit to random drug testing. Mother failed to attend court hearings, meetings with Department personnel, or family group conferences. She also failed to maintain contact with her caseworker. Mother testified she did not know that if she did not complete the required services, her parental rights could be terminated. Hackett testified she never went over the service plan with Mother.
The children were placed with their maternal grandmother when they were removed. According to Hackett, the permanency plan was for their grandmother to adopt the children or be their managing conservator. Then in early 2016, the grandmother notified Hackett she could no longer care for the children. The Department moved the children to their maternal great-aunt's home in February 2016, and they were in her care at the time of trial. Their great-aunt is not able to adopt the children for personal reasons. The Department explored other relative placements, including the children's paternal grandfather and Mother's cousin. Both relatives initially expressed willingness to care for the children but then rescinded or stopped communicating with the Department. As of the time of trial, the plan was for the children to remain with their great-aunt until the end of the school year, then be placed in foster care.
Before they were removed, Mother had not taken the children to the pediatrician in at least six months. After they were removed, all three children were consistently said to be healthy and happy throughout the case. Four and a half years old at the time of trial, the twins were in pre-kindergarten and performing well. Luke had a heart murmur a cardiologist said posed no concern and would disappear with age. Paige was being treated for amblyopia (lazy eye). Luke was in speech therapy and was responding well. No special needs were noted for two-year-old Chris.
The trial court took judicial notice of four permanency plans and progress reports filed by the Department throughout the case, which is permissible. See In re K.F., 402 S.W.3d 497, 504-05 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). The information about the children's status comes from those documents.
During the six months she had been incarcerated at the time of trial, Mother took three concrete steps toward sobriety and fulfilling her parental responsibilities.
First, she completed a 90-day program through the jail called Mentoring Moms. She described it as a holistic program in which participants work on their "mind, body, and soul." The program includes education on relapse prevention, coping, problem-solving, and reentry after the participant is released from jail. Mother attended the program five days a week for eight hours a day.
Second, she attended Alcoholics Anonymous / Narcotics Anonymous meetings weekly. More frequent meetings were not available. Mother said she was on Step 3 of 12 in the program.
Third, Mother took a class called Women and the Law. She said students in the class learned about their legal rights, including how to obtain governmental assistance or entitlement pay and how to deal with the Department in child-safety matters. Mother attended every class session.
Upon her release from jail, Mother intended to live at Santa Maria Hostel, a facility providing residential and outpatient substance abuse treatment. She planned for the children to live with her at Santa Maria. Her residence at Santa Maria would be temporary by nature. She did not have a home or know where she would live after she left Santa Maria.
Both parents testified about what they wanted to see happen to their children. Father said he hoped the court would allow Mother to keep their children. He did not believe she used drugs, and he wanted her to have another chance to raise the children. Mother said she wanted whatever was best for her children.
The trial court signed a decree terminating Mother's and Father's parental rights because (1) each parent engaged in the conduct described in Family Code section 161.001(b)(1), subsections D and E (both concerning endangerment), N (constructive abandonment), and O (failure to comply with a court-ordered service plan), and (2) termination of each parent's parental rights was in the children's best interest. The decree names the Department as the children's managing conservator.
ANALYSIS
I. Burden of proof and standards of review
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex. 1980); In re S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Although parental rights are of constitutional magnitude, they are not absolute. The child's emotional and physical interests must not be sacrificed merely to preserve the parent's rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "'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 (West 2014); accord J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review. S.R., 452 S.W.3d at 358.
Parental rights can be terminated upon clear and convincing evidence that (1) the parent has committed an act described in section 161.001(b)(1) of the Family Code, and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b). Only one predicate finding under section 161.001(b)(1) is necessary to support a decree 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).
In reviewing the legal sufficiency of the evidence in a termination case, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. We assume the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence a reasonable fact finder could disbelieve. J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266.
In reviewing the factual sufficiency of the evidence, we consider and weigh all the evidence, including disputed or conflicting evidence. See J.O.A., 283 S.W.3d at 345. "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." J.F.C., 96 S.W.3d at 266. We give due deference to the fact finder's findings, and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). The fact finder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109. We are not to "second-guess the trial court's resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible." In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
II. Predicate ground for termination: Endangerment (subsection E)
Mother concedes the evidence is legally and factually sufficient to support the trial court's findings that termination was proper under subsections D, E, N, and O of section 161.001(b)(1) of the Family Code. An unchallenged fact finding is binding on us "unless the contrary is established as a matter of law, or if there is no evidence to support the finding." McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); see In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (unchallenged findings of fact supported termination under subsection O because record supported those findings); In re C.N.S., No. 14-14-00301-CV, 2014 WL 3887722, *7 (Tex. App.—Houston [14th Dist.] Aug. 7, 2014) (mem. op.) (same).
Only one predicate finding under section 161.001(b)(1) is necessary to support a decree of termination when there is also a finding that termination is in the child's best interest. A.V., 113 S.W.3d at 362. As discussed below, we conclude the record supports the unchallenged finding that termination is proper under subsection E. Accordingly, we do not review the unchallenged findings regarding subsections D, N, or O.
A. Legal standards
Subsection E of Family Code section 161.001(b)(1) requires clear and convincing evidence that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(E). "To endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996); S.R., 452 S.W.3d at 360. "Conduct" includes acts and failures to act. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
A finding of endangerment under subsection E requires evidence the endangerment was the result of the parent's conduct, including acts, omissions, or failures to act. Id. Termination under subsection E must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. Id. A court properly may consider actions and inactions occurring both before and after a child's birth to establish a "course of conduct." In re S.M., 389 S.W.3d 483, 491-92 (Tex. App.—El Paso 2012, no pet.). While endangerment often involves physical endangerment, the statute does not require that conduct be directed at a child or that the child actually suffer injury. Rather, the specific danger to the child's well-being may be inferred from the parent's misconduct alone. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.—Fort Worth 2004, pet. denied). A parent's conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.—Fort Worth 2013), aff'd, 437 S.W.3d 498 (Tex. 2014).
The parent's conduct both before and after the Department removed the child from the home is relevant to a finding under subsection E. See Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no writ) (considering persistence of endangering conduct up to time of trial); In re A.R.M., No. 14-13-01039-CV, 2014 WL 1390285, at *7 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (considering pattern of criminal behavior and imprisonment through trial).
B. Application
The record supports the unchallenged finding of endangerment under subsection E.
Drug use. A parent's continuing substance abuse can qualify as a voluntary, deliberate, and conscious course of conduct endangering the child's well-being. See J.O.A., 283 S.W.3d at 345; In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); S.R., 452 S.W.3d at 361-62. By using drugs, the parent exposes the child to the possibility that the parent may be impaired or imprisoned and, therefore, unable to take care of the child. See Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Mother admitted to using methamphetamine before and after her children were removed. She said she used it "socially" and "periodically" before removal and daily after removal. Mother confirmed she was high on methamphetamine most of her waking hours while her children were in the Department's custody.
Criminal activity. Evidence of criminal conduct, convictions, or imprisonment is relevant to a review of whether a parent engaged in a course of conduct that endangered the well-being of the child. S.R., 452 S.W.3d at 360-61; A.S. v. Tex. Dep't of Family & Protective Servs., 394 S.W.3d 703, 712-13 (Tex. App.—El Paso 2012, no pet.).
Mother was convicted in November 2013 for failure to identify herself to a peace officer. See Tex. Penal Code Ann. § 38.02 (West 2016). The judgment of conviction states the offense was a class A misdemeanor, which implies Mother was a fugitive from justice when she committed the offense. See id. § 38.02(d)(2).
As discussed above, Mother was jailed for credit card abuse several months after her children were removed. She was arrested again for credit card abuse a year after removal. Two days before she was arrested, she allegedly committed aggravated robbery. She was under indictment for that offense at the time of trial.
Conclusion on subsection E. The evidence of Mother's drug use and criminal activity supports the trial court's unchallenged finding of endangerment under subsection E. Accordingly, we are bound by that finding. See E.C.R., 402 S.W.3d at 249; McGalliard, 722 S.W.2d at 696.
III. Best interest
In her sole issue, Mother contends the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights is in the children's best interest.
A. Legal standards
Termination must be in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(2). There is a strong presumption that the best interest of a child is served by keeping the child with the child's parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). Prompt, permanent placement of the child in a safe environment is also presumed to be in the child's best interest. Tex. Fam. Code Ann. § 263.307(a).
Courts may consider the following non-exclusive factors in reviewing the sufficiency of the evidence to support the best-interest finding: the desires of the child; the physical and emotional needs of the child now and in the future; the emotional and physical danger to the child now and in the future; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the child; the plans for the child by the individuals or agency seeking custody; the stability of the home or proposed placement; acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). As noted, this list of factors is not exhaustive, and evidence is not required on all the factors to support a finding that termination is in the child's best interest. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
In addition, the Family Code sets out thirteen factors to be considered in evaluating a parent's willingness and ability to provide the child with a safe environment. See Tex. Fam. Code Ann. § 263.307(b). Those factors are: (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 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, including providing the child with: (a) minimally adequate health and nutritional care; (b) care, nurturance, and appropriate discipline consistent with the child's physical and psychological development; (c) guidance and supervision consistent with the child's safety; (d) a safe physical home environment; (e) protection from repeated exposure to violence even though the violence may not be directed at the child; and (f) an understanding of the child's needs and capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. Id.; R.R., 209 S.W.3d at 116.
B. Application
1. The children
Desires. No evidence was presented about the children's desires. When a child is too young to express his desires, the fact finder may consider that the child has bonded with the foster family, is well cared for by them, and has spent minimal time with a parent. L.G.R., 498 S.W.3d at 205; In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The evidence shows that Luke, Paige, and Chris were well cared for when they lived with their grandmother and their great-aunt. Chris spent the least amount of time with Mother; he was just eight months old when he left her care. The twins were almost three when they were removed. There was no evidence presented about the children's bond or lack thereof with their grandmother and great-aunt.
Needs. Luke was diagnosed with a benign heart murmur after he was removed from Mother's care. Paige was treated for a lazy eye. These conditions were unknown at the time the children were removed because Mother had not taken them to the pediatrician for at least six months. Luke also received recommended speech therapy after removal.
Department's plan for the children. The children lived with their grandmother for sixteen months and their great-aunt for another three months. Due to personal circumstances of those women and the unwillingness of other relatives to care for the children, the Department planned to place the children in foster care when the school year was finished.
Mother's primary challenge to the best-interest finding is that there was no long-term placement plan for the children. The Texas Supreme Court considered a similar challenge in C.H. The parent in that case argued the evidence was insufficient to support the best-interest finding because no evidence was presented about whether or not the child's foster family planned to adopt him. See C.H., 89 S.W.3d at 28. The supreme court rejected that argument, holding the lack of evidence of a definitive permanency plan does not alone render the best-interest finding unsupportable:
Evidence about placement plans and adoption are, of course, relevant to best interest. However, the lack of evidence about definitive plans for permanent placement and adoption cannot be the dispositive factor; otherwise, determinations regarding best interest would regularly be subject to reversal on the sole ground that an adoptive family has yet to be located. Instead, the inquiry is whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that termination of the parent's rights would be in the child's best interest—even if the agency is unable to identify with precision the child's future home environment.C.H., 89 S.W.3d at 28. Accordingly, the fact that the Department did not have a permanency plan for the children at the time of trial does not render the evidence factually insufficient to support the trial court's finding that termination of Mother's parental rights is in the children's best interest.
2. Mother
Endangerment. As discussed, Mother endangered the children by abusing drugs and engaging in criminal activity. Evidence relevant to statutory bases for termination is also relevant to the child's best interest. See S.R., 452 S.W.3d at 366.
Mother points to the progress she made toward sobriety in jail and her intent to continue with substance abuse treatment as evidence that undermines the trial court's best-interest finding. As fact finder, the trial court was free to discredit her self-serving testimony. See H.R.M., 209 S.W.3d at 109 (fact finder is sole arbiter when assessing credibility and demeanor of witnesses). Moreover, abuse of drugs is "hard to escape," and the fact finder is "not required to ignore a long history of dependency . . . merely because it abates as trial approaches." In re M.G.D., 108 S.W.3d 508, 513-14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The trial court may reasonably determine that a parent's changes shortly before trial are too late to impact the best-interest decision. See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied).
Although a reasonable fact finder could look at Mother's progress and decide it justified the risk of keeping her as a parent, we cannot say the trial court acted unreasonably in finding the children's best interest lay elsewhere. M.G.D., 108 S.W.3d at 514. It is not our role to reweigh the evidence on appeal, and we may not substitute our judgment of the children's best interest for the considered judgment of the fact finder. See id. at 531 (Frost, J., concurring in judgment).
Failure to comply with court-ordered services. The trial court may properly consider that the parent did not comply with the court-ordered service plan for reunification with the children. See E.C.R., 402 S.W.3d at 249. Though Mother said she did not understand the consequence of failing to complete her service plan, she undisputedly knew of the plan's requirements. Despite her knowledge, she failed even to begin the required tasks and services.
Uncertain immediate future. Mother was incarcerated at the time of trial, and no evidence was presented as to when she would be released from jail. She also faced prosecution for aggravated robbery, a first-degree felony. The record suggests that charge would be resolved through a plea-bargain agreement, but the length of imprisonment, if any, under that agreement is not in the record. Mother intended to live with her children at the Santa Maria Hostel while she completed inpatient substance abuse treatment. Their stay in that facility would be temporary, however, and Mother did not have a home or know where she would live after she left Santa Maria.
Considering all the evidence in the light most favorable to the best-interest finding, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of Mother's parental rights was in the children's best interest. See J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. Further, in light of the entire record, we conclude the disputed evidence the trial court could not reasonably have credited in favor of its best-interest finding is not so significant that the court could not reasonably have formed a firm belief or conviction that termination is in the children's best interest. Accordingly, the evidence is legally and factually sufficient to support the trial court's finding that termination of Mother's parental rights is in the best interest of the children.
CONCLUSION
We overrule Mother's issue and affirm the trial court's judgment.
/s/ J. Brett Busby
Justice Panel consists of Justices Boyce, Busby, and Wise.