Opinion
No. 04-17-00769-CV
05-09-2018
IN THE INTEREST OF L.M.T., et al., Children
MEMORANDUM OPINION
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-00862
Honorable Norma Gonzales, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
Appellants, Father and Mother, separately appeal the trial court's order terminating their parental rights to their three children, L.M.T, K.R.T., and K.N.T. The only issue presented by Mother is whether the evidence is legally and factually sufficient to support the trial court's finding that termination was in the children's best interest. Father challenges the sufficiency of the evidence supporting the trial court's findings with regard to the statutory grounds as well as its finding that termination of Father's parental rights was in the children's best interest. We affirm the trial court's order.
BACKGROUND
On April 26, 2016, the Texas Department of Family and Protective Services ("Department") filed its original petition to terminate parental rights. In the supporting affidavit, Department Caseworker Bianca Martinez related the Department received a referral on April 21, 2016, alleging Father and Mother were manufacturing methamphetamine in their home. The referral further alleged the children were present in the home, which was unsanitary and dangerous and that L.M.T. had a skin condition the parents were treating with gasoline and other hazardous materials. The supporting affidavit indicated K.R.T. and L.M.T. had been placed with their maternal grandmother ("Grandmother") as the family safety plan.
In the course of investigating the allegations, Martinez and Department Investigator Adam Jacobs were unable to make contact with the parents and learned Grandmother had only K.R.T. in her care. Grandmother indicated L.M.T. was with Father. Also during the course of the Department's investigation, Grandmother was arrested for possession of methamphetamines, which invalidated the family's safety plan. Jacobs advised Father via telephone that K.R.T. needed to be picked up because of Grandmother's arrest. Father insisted he could not collect K.R.T. that day and refused to tell Jacobs whether he had L.M.T. in his care. The Department placed K.R.T. at the Children's Shelter and later moved her into foster care.
Martinez subsequently met with Father, who presented Martinez with a negative drug screen result from an outside clinic. Father refused to submit to a current drug test. Father also refused Martinez access to L.M.T. Martinez informed Father of the allegations, which Father denied. Although Father agreed to allow Martinez to see L.M.T. later that evening at his home, when Martinez went to the home at the designated time, no one was there. The Department subsequently removed L.M.T. from the parents' custody and placed her in foster care.
On October 4, 2016, the Department filed an amended petition to terminate parental rights, adding the newborn child K.N.T. In the supporting affidavit, Department Investigator Jaclyn Blake stated the Department received a referral on September 29, 2016, alleging neglectful supervision because Mother tested positive for marijuana during childbirth. According to Blake, Mother admitted to using marijuana the day before giving birth and to using methamphetamine during the previous month. At her birth, K.N.T. experienced tremors, which is indicative of drug withdrawal. K.N.T.'s meconium tested positive for marijuana and amphetamine. The supporting affidavit noted that L.M.T. also tested positive for marijuana and methamphetamine at birth and that Mother tested positive for marijuana and amphetamines at K.R.T.'s birth.
Department Caseworker Tekeema Scott testified that the family service plan required both Mother and Father to submit to random hair follicle and urinalysis ("UA") drug testing; undergo psychosocial evaluation and participate in counseling; provide proof of stable housing and employment; attend AA or NA meetings twice a month; and maintain sobriety. The service plan additionally required Mother to provide proof of prenatal care and attend the Mommies Program, a program for expectant mothers with substance abuse disorders, and Father was additionally required to attend the Compadre y Compadre parenting program. Scott testified Mother indicated she worked at a tire shop and for a company by the name of "Aztec," but did not provide any documentation proving stable employment. Scott confirmed Father's former employer attended a family service meeting. Scott testified Father informed her he began his own company and showed her a business card, but did not provide any other verification of employment such as tax forms or client contracts. Scott testified she visited Mother and Father at an RV situated on a piece of land, but neither parent provided any documentation indicating they were renting the RV and land or were otherwise legally living at the property.
Scott referred Mother and Father to the Drug Court because she believed both Mother and Father would benefit from the intensive case management associated with Drug Court. Family Drug Court monitor Elise Barker testified both Mother and Father took part in the program for only two weeks. Mother tested positive for the use of amphetamine, methamphetamine, marijuana, and benzodiazepine (Xanax) at different times in that two-week period. Barker testified Mother refused to undergo inpatient drug treatment as required by the program. Barker testified Father's drug screens resulted positive for methamphetamine. Barker further testified Father did not agree with the testing results and was uncooperative.
Scott then referred Mother and Father to cognitive behavioral counselor Patricia Boone. Boone testified Father completed the psychosocial evaluation, but then refused to take part in counseling. Mother also completed the psychosocial evaluation but attended only two appointments with Boone. Upon being informed Mother was not engaging in other services, Boone insisted Mother present a "clean UA" before she could re-engage in counseling with Boone. According to Scott, Mother did not present a "clean UA" and did not continue with Boone.
Scott next referred both parents to cognitive behavioral counselor Delores Mower when the parents indicated they wanted to re-engage in services. Mower testified the Department required the parents to attend twice-monthly counseling sessions, but that Mother and Father each attended only two assessment sessions and two counseling sessions. According to Mower "[b]oth of the clients just quit coming." Mower testified neither Mother nor Father followed through with their treatment plans.
An employee of Child Advocates San Antonio ("CASA") observed the parents and children during visitation. The employee testified the parents brought appropriate toys, food, and games for the children. According to the employee, Mother was engaged and attentive toward her children. The employee testified Father's visits were positive and he was engaging with the children.
The CASA employee also observed K.N.T. in her foster placement. The employee further testified K.N.T.'s foster mother is attentive and loving. K.N.T.'s foster mother testified the child was placed with her when K.N.T. was five days old. The foster mother related that K.N.T. "had shaking," "head tremors," and diarrhea, and "would take gasping breaths" until she was about four months old. The foster mother further testified K.N.T. is a happy child who likes to laugh and affirmed that she is willing to adopt K.N.T.
The CASA employee additionally observed K.R.T. and L.M.T. in their placement with foster parents, T.M. and C.M. According to the employee, K.R.T. and L.M.T. are learning a second language from C.M., playing with colors, and are "very on target." The employee testified T.M. and C.M. are very loving and "very bonded" with K.R.T. and L.M.T. T.M. testified the children had been placed with him and his wife for over a year and stated he and his wife would like to adopt the children.
Father and Mother both testified on their own behalf. Father acknowledged he did not comply with the service plan, explaining he did not attend parenting classes because he had done so in the past and found the classes unnecessary. Father further admitted to refusing counseling and not being able to meet the demands of the Drug Court program. Father explained both interfered with his work. Father testified that at the beginning of the Department case, he was employed by Aztec Estates, a mobile home park, but that he has since gone into business for himself as a contractor. Father additionally testified that Mother had worked alongside him at the mobile home park and continued to do so in his contracting business. According to Father, Mother additionally worked for his brother in a tire shop.
Mother testified she loves her children and is prepared to be a good mother for them. Mother acknowledged she did not comply with the service plan and did not complete the Mommies Program. Mother explained she did not want to take part in inpatient counseling. Mother testified she completed online parenting classes, but recognized those classes were not a part of the service plan. Mother also acknowledged that she was unsuccessfully discharged from several treatment or counseling programs. Mother admitted to using drugs during her pregnancies, but stated, "there is no harm that's going to come from a pregnancy that has drug use that's not going to come from any other daily activity while you're pregnant." Mother acknowledged that the levels of amphetamine, marijuana, and methamphetamine were higher in the results of her February 2017 hair follicle test than in the results of her August 2016 test.
After considering all the evidence and the parties' arguments, the trial court terminated Mother's and Father's parental rights to their children L.M.T., K.R.T., and K.N.T. This appeal followed.
STANDARD OF REVIEW AND STATUTORY REQUIREMENTS
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. §§ 161.001, 161.206(a) (West Supp. 2017); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In this case, the trial court found evidence of four predicate grounds to terminate both Mother's and Father's parental rights and also found termination of both Mother's and Father's parental rights was in the best interest of the children.
When reviewing the sufficiency of the evidence, we apply the well-established standards of review. See TEX. FAM. CODE ANN. §§ 101.007, 161.206(a); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency).
BEST INTERESTS
In determining whether a child's parent is willing and able to provide the child with a safe environment, we consider the factors set forth in Family Code section 263.307(b). See TEX. FAM. CODE ANN. § 263.307(b). We also apply the non-exhaustive Holley factors to our analysis. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Evidence that proves one or more statutory ground for termination may also constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). "A best interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). "A trier of fact may measure a parent's future conduct by his past conduct and determine whether termination of parental rights is in the child's best interest." Id.
These factors include: (1) the child's desires; (2) the child's present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child's best interest; (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. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).
MOTHER'S APPEAL
All three children were very young at the time of trial, and there was no direct evidence of the children's desires. However, there was evidence the children bonded with their foster parents and were well-cared for by their foster parents. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (factfinder may consider whether children have bonded with foster family and are well-cared for when children are too young to express their desires). Although Mother testified she was employed, she did not provide proof of employment as required; nor did Mother provide the required proof of a stable residence. Id. (a stable permanent home for a child is an important consideration). Additionally, evidence was presented of Mother's extensive history of drug use, her failure to submit to drug testing, and her failure to complete treatment or counseling, despite being ordered to do so by the trial court. In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (evidence that the appellant failed to comply with the court-ordered service plan supported the trial court's best-interest determination); In re. L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) ("A parent's drug use supports a finding that termination is in the best interest of the child.").
Having reviewed the record, we hold the evidence is sufficient to support the trial court's finding that termination of Mother's parental rights was in the children's best interest. Mother's only issue is overruled.
FATHER'S APPEAL
In his first issue, Father challenges the sufficiency of the evidence supporting the trial court's findings under section 161.001(b)(1)(D), (E), (O), and (P) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (P) (West. Supp. 2017). Father also challenges the sufficiency of the evidence supporting the trial court's finding that termination was in the children's best interest. See id. § 161.001(b)(2).
Failure to Comply with Court Order
In general, Texas courts take a strict approach to subsection (O)'s application. In re D.N., 405 S.W.3d 863, 877 (Tex. App.—Amarillo 2013, no pet.). "Ground O does not quantify any particular number of provisions of the family service plan that a parent must not achieve in order for the parental rights to be terminated." In re B.H.R., 535 S.W.3d 114, 122 (Tex. App.—Texarkana 2017, no pet.).
Here, the evidence shows that although Father completed some drug assessments, he did not complete drug treatment or maintain his sobriety. Father argues in his brief that the drug levels were falling. However, the test results of Father's hair follicle tests indicated that between June 3, 2016 and July 15, 2016, although the levels of methamphetamine and amphetamine fell, the level of marijuana increased. Also, between July 15, 2016 and February 1, 2017, although the levels of marijuana and amphetamine had decreased, the level of methamphetamine had increased. Additionally, although Father completed the required psychosocial evaluation, Father refused to engage in counseling on several occasions and did not complete that part of his service plan.
"A parent's failure to complete [just] one requirement of [his family service plan] supports termination under subsection (O)." In re J.M.T., 519 S.W.3d 258, 267 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (internal quotation omitted); In re M.C.G., 329 S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (holding evidence that parent failed to complete individual therapy sufficient to support termination). Having reviewed the record, we hold the evidence is legally and factually sufficient to support the trial court's finding that Father failed to comply with the provisions of the court order. Because we hold the evidence is legally and factually sufficient to support the trial court's finding regarding section 161.001(b)(1)(O), we need not address the trial court's remaining findings under section 161.001(b)(1). See In re A.V., 113 S.W.3d at 362 ("Only one predicate finding under section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest."). Father's first issue is overruled.
Best Interest
All three children were very young at the time of trial, and there was no direct evidence of the children's desires. However, evidence was presented that the children were bonded with their respective foster parents and were well-cared for by their foster parents. In re J.D., 436 S.W.3d at 118. Father testified he was employed, but he did not provide proof of employment to his caseworker as required by the service plan. In re E.C.R., 402 S.W.3d at 249. Father also refused to take part in counseling or drug treatment as required by the service plan. Id. Additionally, although Father testified the parents were in the process of purchasing a home to place on a rental lot, Father acknowledged no lease had yet been signed or purchase made at the time of trial. In re J.D., 436 S.W.3d at 118. Finally, Father continued to test positive for the use of drugs throughout the pendency of the case. In re. L.G.R., 498 S.W.3d at 204.
Having reviewed the record, we hold the evidence is sufficient to support the trial court's finding that termination of Father's parental rights was in the children's best interest. Father's second issue is overruled.
CONCLUSION
We affirm the trial court's order terminating Mother's and Father's parental rights.
Irene Rios, Justice