Summary
holding sufficient evidence existed that termination was in child's best interest when both foster family and biological aunt were interested in adopting child
Summary of this case from In re D.D.D.Opinion
01-22-00482-CV
12-29-2022
IN THE INTEREST OF S.M.M., A CHILD
On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2020-01965J
Panel consists of Justices Kelly, Landau, and Farris.
MEMORANDUM OPINION
PETER KELLY, JUSTICE
E.H., the father of S.M.M., appeals from the trial court's decree terminating his parental rights to his daughter, who was about one-and-a-half years old at the time of trial. On appeal, E.H. raises three issues. The first two issues challenge the legal and factual sufficiency of the evidence to support the trial court's findings that he committed the predicate act of abandonment, see TEX. FAM. CODE § 161.001(b)(1)(N), and that termination of his parental rights is in the best interest of S.M.M. In his third issue, E.H. argues that the trial court abused its discretion by granting the Department of Family and Protective Services sole managing conservatorship over S.M.M.
We affirm.
Background
E.H., the father of S.M.M., met the mother near the beginning of 2020. According to the father, they saw each other occasionally throughout much of the year. In mid-2020, the father learned through a mutual friend that the mother was pregnant. According to the father, the mother's whereabouts were unknown, or she was missing, not long before the birth of S.M.M. Sometime around September 2020, the mother was arrested. She went into labor while in jail and delivered S.M.M. in late September 2020.
In addition to being in jail, the mother had mental health challenges and was using illegal drugs, so S.M.M. came into care when she was just a few days old. S.M.M. was placed with a foster family, who has cared for her for the duration of the case. The mother did not provide the Department of Family and Protective Services (the "Department") with names of any family or friends who could immediately provide care for S.M.M., but she did provide the names of two men who were possibly S.M.M.'s father: E.H. and K., whose last name was unknown to the mother.
The mother was released from jail, and, sometime after December 2020, she went to California to live with her biological mother. While she was in California, the mother contacted the father, told him that S.M.M. had been born, and that she was in foster care.
Sometime in March or April 2021, the mother returned to Texas and contacted the Department caseworker, Chenelle Parks. The mother was living with a relative in Houston, and she wanted to resume virtual visits with S.M.M., which she had done while in California. By July 2021, the mother had failed to comply with her family plan of service, and the Department changed the permanency goal for S.M.M. from family reunification with the mother to unrelated adoption. The Department was considering adoption of S.M.M. by the foster family who had cared for her since just after her birth.
In July 2021, the father was living with friends, unemployed, and looking for a job. The evidence showed that the father was homeless during the pendency of this case. Although the father testified that he had stable employment, he testified only about a job working for a security company making "probably" $8 an hour, which he quit because he did not earn enough money to support his lifestyle. The father also lacked reliable transportation and phone service. According to the father, from July 2021 until November 2021, he did not have standard mobile phone service, so the phone number he provided was the number assigned to him by an app called "TextNow," which provided free phone and text messaging when the user had access to WiFi. TextNow allowed text messages to be retrieved whenever the father had access to WiFi.
Both Parks and the father testified about their communications and the evidence is inconsistent about some details. Parks testified that she spoke to the father in April 2021. She testified that the father told her he knew that S.M.M. had been born and he believed she was his child. The father testified that around April 2021, he contacted Parks to provide information, including the names of relatives who could potentially care for S.M.M. or provide a connection to contact him. The father testified: "I did not want . . . my child to be into the system because I went through it. Most all of us went through it. You know, that's something I didn't want to happen. So, I figured-I'm not sure if it's mine, whatever, I would at least give information, just give it just in case."
Parks testified that she told the father in April and July 2021 about the need for DNA testing and the fact that S.M.M. was in foster care. Parks testified that the father was aware of where he needed to go for DNA testing, that no appointment was needed, and that the Department would arrange payment for the service. In July 2021, Parks told him that he needed to submit to DNA testing. She later testified: "The time frame was at least by that next week. And I gave that just due to his inability, you know, with nowhere to live and he needed transportation. So, I did give him up to seven days that he could go, business days." The father gave Parks the name and contact information for one of his sisters, "Theresa," who did not reside in Texas. The father later testified that he did not have contact information for his sister, "Connie," who lived in Houston. Parks reached out to "Theresa," who gave her Connie's name and contact information. When Parks later reached out to them to locate the father, neither sister knew his whereabouts.
This is a fictitious name.
This is also a fictitious name.
The father testified that he called Parks in July 2021 because she had messaged him on social media. At trial, the father was asked whether she had informed him there was a pending case "regarding your child," and he testified: "Oh, yes. Yes." The father also testified that he was not certain he was the father of S.M.M. at that time because paternity had not been established by DNA, although he also later testified that he had assumed the baby was his since he learned of the mother's pregnancy and S.M.M.'s birth.
The father did not communicate with Parks, or anyone else from the Department, after July 2021. The father testified that the caseworker did not tell him that he was required to communicate with her on a consistent basis. He did not complete the DNA testing. He did not provide any support to S.M.M. Although the father testified that he asked the mother if he could join in one of her virtual visitations with S.M.M., he did not contact Parks to request or set up visitation.
In November 2021, the father was arrested on charges of aggravated robbery, and he remained in jail through trial in this case, which was conducted on March 22, 2022 and May 10, 2022. In February 2022, the father's appointed counsel notified the Department by email that the father was in the Harris County jail. At that time, the father had not yet submitted to DNA testing, and his parentage of S.M.M. had not been established. The father had not, therefore, been served with citation of the lawsuit or given notice of the trial dates.
The trial began on March 22, 2022. At that time, the court heard evidence regarding the mother, but the trial was continued to allow the father to be served and to complete DNA testing. The court noted, however, that the father appeared at trial, waiving service. DNA testing in April 2022 established the father's parentage of S.M.M., and the Department began a home study to determine the suitability of Connie's home for S.M.M. Connie, the Houston-based sister, had expressed an interest in placement of S.M.M. On May 7, 2022, three days before trial resumed, the final home visit needed to complete the home study was conducted, although the Department had until May 20, 2022 to finalize the report and make a recommendation.
On May 10, 2022, the trial resumed with evidence relevant to the father. At the outset, the father's counsel argued for a continuance to allow for finalization of Connie's home study and to enable the father to receive and work a family service plan. The Department opposed the motion for continuance, saying: "We believe that the child does have permanency at this point, and we are ready to move forward."
At trial, Parks testified that the father had a service plan, and its only requirement was to complete DNA testing. She said that she had planned to create a family service plan for the father after DNA established his parentage of S.M.M., but after reviewing the case with her supervisors, the decision was made to go forward with termination of his parental rights without a new family service plan.
Parks testified that the Department's goal was to keep S.M.M. in her current foster home until finalization of Connie's home study and, assuming the home study was approved, a determination about whether moving S.M.M. from her current foster home to Connie's home would be in her best interest. The Department was pursuing termination of the father's parental rights and seeking permanent managing conservatorship of S.M.M.
Parks was asked why the Department sought termination of the father's parental rights, when he was a non-offending parent and there were no allegations that he had abused or neglected S.M.M. Parks testified that the issue was his stability. After speaking with him in 2021, the father did not contact the Department, failed to submit to DNA testing, and was homeless. Parks said that she stopped communicating with the father's sisters because the Department had not been able to confirm his parentage of S.M.M.
Parks conceded that she did not submit the paperwork necessary to obtain payment for DNA testing services, but she also said that the testing laboratory calls the Department when the parent arrives. She also conceded that the Department received an email from the father's attorney in February 2022 indicating that the father was in the custody of Harris County and that she had not met with the father at the jail, where he had been since November 2021. Parks also testified that there are no services available for a parent to complete while in jail.
Throughout the case, the father provided no financial support for S.M.M. or made any arrangements to provide her with food, clothing, shelter, or care. He never visited her. He did not contact the Department to inquire about visitation or DNA testing. He had no communication with the Department after the phone call in July 2021 until he was served in March 2022.
According to Parks, S.M.M. was developing appropriately, had no special needs, and was well-bonded to her current caregivers, who met all her needs. Parks said that S.M.M. was "very happy," walking and beginning to talk, and excited to greet her foster father and brother when they come home.
The father testified that he told Parks that he was not sure whether S.M.M. was his child, but he said, "Maybe it could be, yeah." The father testified that he "most definitely" wanted to know whether S.M.M. was his child, and that the only to be certain whether he was the father of the child was DNA testing. He was noncommittal when asked what efforts he made to obtain DNA testing. He said that she told him he had to do it but never gave him any details about where to go or how to comply. He admitted he never contacted Parks to ask for an address of where to go to get DNA tested. When asked why he did not ask for information about how to get DNA tested, the father admitted that he avoided DNA testing to avoid the disappointment of finding out "it was not mine." He also avoided testing because he had "a lot of things going on," and he knew the child was safe.
The father testified that it is "most definitely" important to provide for a child, but he conceded that he provided no support for S.M.M. because "I didn't know if it was actually for sure mine, you know.... I didn't really find out that it was mine until recently." He gave a similar reason for not seeking visitation with S.M.M., except for asking the mother if he could join one of her virtual visitations. The father said that if he had known S.M.M. was his child, he would have done things differently, for example, providing financial assistance and seeking visitation.
The father testified that he had a stable place to live in July 2021. He said that he was living with friends in July 2021, but he was in the process of getting an apartment, "trying to get that together." The father testified that after he spoke with Parks in July 2021, he fell on hard times and was homeless. He also said that he became homeless because he tried to help his mother, who was also homeless.
The father also testified that he "most definitely" had stable employment during the case, saying: "Let's see. It was a security company. It was just, you know, something like that. Probably, like, $8 an hour, you know." He also said he was not employed at that job long "because it wasn't enough to take care of the business that I needed to take care of." He also testified that he had the financial resources to take care of a child. He acknowledged, however, that he was not ready to care for a child, but he said his sisters could provide a safe and stable environment for his child until he was released from jail and could "get things together." The father said that he provided contact information for his sister because he believed S.M.M. could be his child and he wanted her to be placed with one of his sisters.
The father conceded that both he and the mother had extensive criminal history, saying: "I think everybody does. Most people-you not 'every' everybody, but, you know, people have-you know especially with being not a place to stay or whatever, you know, different stuff like that. I mean, things do happen."
The father's sister, Connie, testified that she was seeking placement of S.M.M. She said she had completed the paperwork and had a home study. She testified that she had worked as a surgical technician for 16 years and had three children. She said that two children lived at home with her: the oldest, who was in college, and the youngest, who was about to graduate from high school and attend college. She testified that she had the time and resources to care for S.M.M.
The child advocate assigned to work with S.M.M. testified that S.M.M. "has been in a great home," and she said her "personal preference" was for S.M.M. to remain there. Because the father's parentage of S.M.M. had only recently been confirmed by DNA, however, Child Advocates officially espoused no position regarding the termination of the father's parental rights. The supervisor for Child Advocates emphasized the Department's policy to place children with relatives when possible, and she testified that neither parent was "currently capable at the moment to be in a position to care for the child."
The trial court granted termination of the father's parental rights to S.M.M. based on its findings that he committed the predicate act of constructive abandonment, and that termination was in the best interest of S.M.M. The court appointment the Department to be S.M.M.'s permanent managing conservator. The father appealed.
The trial court also terminated the parental rights of the mother, but that is not at issue in this appeal.
Analysis
The father raises three issues on appeal. In his first two issues, the father asserts that the evidence was legally and factually insufficient to support the trial court's determinations that (1) he committed the predicate act of constructive abandonment and (2) termination was in the child's best interest. In his third issue, he asserts that the trial court abused its discretion by awarding sole managing conservatorship to the Department.
I. Termination of parental rights A. Legal standards
The involuntary termination of parental rights involves fundamental constitutional rights. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re G.M., 596 S.W.2d 846 (Tex. 1980)). As a result, when the Department seeks to permanently terminate the relationship between a parent and a child, it must observe fundamentally fair procedures. In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747-48 (1982)).
The interest of parents in the care, custody, and control of their children is a fundamental liberty interest protected by the Constitution. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Santosky, 455 U.S. at 758-59. But the rights of natural parents are not absolute. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Protection of the child is paramount, and when the State institutes proceedings to terminate parental rights, courts focus on protecting the best interests of the child. See A.V., 113 S.W.3d at 361 (citing J.W.T., 872 S.W.2d at 195).
"A strong presumption exists that a child's best interests are served by maintaining the parent-child relationship." Walker v. Tex. Dep't of Fam. & Protective Servs., 312 S.W.3d 608, 618 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). We strictly scrutinize termination proceedings on appeal because "the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Santosky, 455 U.S. at 747-48); see In re J.F.C., 96 S.W.3d 256, 26364 (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 § 101.007.
A court may order termination of the parent-child relationship when it finds by clear and convincing evidence that the parent has committed one or more of the statutorily enumerated predicate acts or omissions, and that termination is in the children's best interests. TEX. FAM. CODE § 161.001(b)(1), (2). "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." A.V., 113 S.W.3d at 362.
The "best interest" finding is a separate inquiry from the finding of a predicate act, but evidence that supports a predicate-act finding may also be probative of the best interest of the child. See TEX. FAM. CODE § 161.001(B)(2); In re A.R.R., No. 01-18-00043-CV, 2018 WL 3233334, at *4 (Tex. App.-Houston [1st Dist.] July 3, 2018, pet. denied) (mem. op.). Our review of a trial court's best interest finding is guided by the following non-exclusive factors: (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 these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by 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 proper, 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.R.R., 2018 WL 3233334, at *4.
B. Standards of review
In conducting a legal sufficiency review, we view "the evidence in the light most favorable to the judgment," which means that we "must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. The factfinder is the sole arbiter when assessing the credibility and demeanor of witnesses. In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006). A reviewing court may not disregard undisputed facts that do not support the finding, but it "should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." J.F.C., 96 S.W.3d at 266. Evidence is legally sufficient when it enables a factfinder to "reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof." Id. at 265-66; see TEX. FAM. CODE § 101.007.
In a factual sufficiency review, the reviewing court again determines "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." J.F.C., 96 S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). But rather than disregarding disputed evidence that the factfinder could have disbelieved, we consider whether "a reasonable factfinder could not have resolved that 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.; see A.R.R., 2018 WL 3233334, at *4.
II. The evidence is legally and factually sufficient to support the trial court's finding that the father constructively abandoned S.M.M.
A trial court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has constructively abandoned the child. See TEX. FAM. CODE FAM. § 161.001(b)(1)(N). To prove constructive abandonment, the Department must establish four elements: (1) the child has been in the permanent or temporary managing conservatorship of the Department for not less than six months, (2) the Department has made reasonable efforts to return the child to the parent, (3) the parent has not regularly visited or maintained contact with the child, and (4) the parent has demonstrated an inability to provide the child with a safe environment. Id.; see In re G.K.G.A., No. 01-16-00996-CV, 2017 WL 2376534, at *4-7 (Tex. App.-Houston [1st Dist.] June 1, 2017, pet. denied) (mem. op.) (applying statutory requirements to facts).
On appeal, one of the four elements required for constructive abandonment is undisputed. The father does not dispute that S.M.M. had been in the temporary managing conservatorship of the Department since October 2020 and, thus, was in its care for more six months before his parental rights were terminated. The father does challenge the sufficiency of the evidence to support a finding that (1) the Department made reasonable efforts to return S.M.M., (2) he has not regularly visited or maintained contact with S.M.M., and (3) he demonstrated an inability to provide the child with a safe environment.
A. The evidence shows that the Department made reasonable efforts to return S.M.M.
The father argues that the evidence is insufficient to show that the Department made reasonable efforts to return S.M.M. to him because the Department did not prepare a family service plan for him or give him a meaningful opportunity to work toward having his daughter with him or a family member.
To find that a parent committed constructive abandonment, the evidence must show that the Department made reasonable efforts to return the child to the parent. Tex. Fam. Code § 161.001(b)(1)(N). Ordinarily, this element focuses on the Department's conduct. In re J.A., No. 01-21-00606-CV, 2022 WL 802982, at *4-5 (Tex. App.-Houston [1st Dist.] Mar. 17, 2022, no pet.) (mem. op.); In re A.M.E., No. 01-21-00214-CV, 2021 WL 4533262, at *6 (Tex. App.-Houston [1st Dist.] Oct. 5, 2021, no pet.) (mem. op.). "The issue is whether the Department made reasonable efforts, not ideal efforts." J.A., 2022 WL 802982, at *4 (citing A.M.E., 2021 WL 4533262, at *6).
"When the Department removes a child from his parent's care, it designs a family service plan to reunify the parent and child." Id.; see TEX. FAM. CODE § 263.101 (providing that Department must file service plan within 45 day of trial court order appointing Department temporary managing conservator of child under Family Code chapter 262). “Preparing and administering the plan, standing alone, constitutes evidence that the Department made reasonable efforts to return the child.” J.A., 2022 WL 802982, at *4 (citing A.M.E., 2021 WL 4533262, at *6). Notably, under the statute, a service plan applies only to parents, not to an alleged father. E.g., Tex. Fam. Code § 263.102 ("Service Plan; Contents"; referring to "parent" throughout); id. § 263.103 ("Original Service Plan: Signing and Taking Effect"; referring to "parent" throughout). Compare id. § 101.0015(a) ("'Alleged father' means a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined."), with id. § 101.024(a) ("'Parent' means . . . a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under an applicable law, or an adoptive . . . father.").
The Department argues on appeal that the father had a family service plan that required only DNA testing. The clerk's record includes a document entitled "family plan" that states: "[The father] will come forward and submit to court ordered paternity test in regards [sic] to [S.M.M.]. If [the father] is located and is the father of the child, CPS will complete a Family Needs and Strengths Assessment to see what services are needed for the parent and a new Family Plan of service will be generated with task[s] that are specific to the parents needs." The plan also noted that the father had not yet been located as of November 2020, and the Department was concerned about the difficulty in locating him because the mother had indicated that he was homeless. This document does not meet the statutory requirements to be a family service plan that could demonstrate that the Department made a reasonable effort to return the child to the parent because in November 2020, the father was only an "alleged father" within the meaning of the statutory definitions.
"[W]hile implementation of a service plan is often the means by which the Department establishes its reasonable efforts to return a child to a parent, it is not the exclusive means of establishing that element." In re A.M., No. 05-21-00712-CV, 2022 WL 278972, at *4 (Tex. App.-Dallas Jan. 31, 2022, no pet.) (mem. op.); In re J.W., 615 S.W.3d 453, 463 (Tex. App.-Texarkana 2020, no pet.); In re J.G.S., 550 S.W.3d 698, 704-05 (Tex. App.-El Paso 2018, no pet.). "Rather, the Department can prove it made reasonable efforts to return the child to appellant by showing that appellant impeded the Department's attempts to timely adjudicate appellant's parentage." A.M., 2022 WL 278972, at *4; J.W., 615 S.W.3d at 465. "In other words, an alleged father in appellant's situation cannot use a delay in adjudication of parentage that he created to defend against termination of his parental rights." A.M., 2022 WL 278972, at *4.
The father's arguments focus on the fact that the Department did not provide him a family service plan and he had no opportunity to complete services after his parentage of S.M.M. was established in April 2022. He argues that although the Department was informed that he was in custody in Harris County in February 2022, he was not served until after he made an appearance at the start of trial on March 22, 2022. He was confirmed as S.M.M.'s father 36 days before trial resumed, at which point the trial court denied his motion for a continuance to allow him to receive a new family service plan and work services. The Department did not issue the father a new service plan.
The father's arguments ignore the facts that show he impeded the Department's efforts to timely adjudicate his parentage for nearly a year before the DNA test confirmed that he was S.M.M.'s father. The father knew as early as 2020 that the mother was pregnant, and by early 2021 that S.M.M. had been born and was in foster care. At trial, the father testified that once he learned the mother was pregnant, he assumed that the child was his and that he avoided DNA testing due to his fear that he would be disappointed to learn she was not his child. In April 2021, he spoke to Parks and suggested his sisters as possible caregivers because he had experienced foster care as a child and did not want his child to be in foster care.
In April and July 2021, Parks, the Department's caseworker, informed the father that he was required to submit to DNA testing. She also told the father where to go and that the Department would arrange payment for it. But he did not go to the lab or submit to DNA testing. Instead, he ceased all communication with the Department-never calling or texting for additional instructions or to obtain answers to any questions he had about DNA testing.
The evidence showed that the father did not have stable housing and was homeless-living on "the streets"-during the pendency of the case. Nevertheless, the Department employed various methods to attempt to contact the father including using the TextNow phone number to text him, reaching out to him over social media, and contacting his sisters, whom the father had identified as people who would know how to contact him. They did not. From April 2021 through November 2021, when he was jailed on felony charges, the father took no action to comply with DNA testing. At trial he testified that he actively avoided it. Although the father's parentage was not established by DNA until April 2022, had he complied with the request for DNA testing when he was initially asked, his paternity could have been established by mid-2021, affording him the right and an opportunity to receive and complete a family service plan.
Moreover, the "Department's efforts to place the child with relatives may constitute legally and factually sufficient evidence to support the trial court's finding that the Department made reasonable efforts." J.G.S., 550 S.W.3d at 704-05 (holding that Department made reasonable efforts to return child to incarcerated father by undertaking efforts to place child with relatives even in absence of issuance of family service plan for father after parentage was established). Here, once the father's paternity was established by DNA testing, the Department moved ahead with a home study on Connie, the father's sister who testified that she was interested in caring for S.M.M. Although the home study had not been finalized by the close of trial, the parties and the trial court contemplated that the child could be placed with Connie at a future date. The father's counsel asked for assurance that Connie's home study would be completed and presented to the attorney ad litem, who promised to "stay on top of that." The trial court ordered the attorney ad litem to stay on the case and that no movement of the child was permitted without approval of the attorney ad litem.
We conclude that the evidence is legally and factually sufficient to show that the Department made reasonable efforts to return the child to the father. See J.F.C., 96 S.W.3d at 266.
B. The father has not regularly visited or maintained contact with S.M.M.
The father also argues that the evidence is insufficient to show that he did not visit regularly or maintain significant contact with his child. "A parent fails to regularly visit or maintain significant contact with their children when the parent fails to take advantage of visitation rights or when visits are intermittent or sporadic." In re S.S., No. 11 05 00083-CV, 2006 WL 1285125, at *3 (Tex. App.- Eastland May 11, 2006, no pet.) (mem. op.); accord C. G. v. Tex. Dep't of Fam. and Protective Servs., No. 03-18-00852-CV, 2019 WL 3367524, at *7 (Tex. App.- Austin July 26, 2019, no pet.) (mem. op.) (noting parent's failure to maintain significant contacts with two children when he attended only eight of twenty-three visits, slept or ignored children during some visits, provided no financial or emotional support, and failed to call or send birthday cards).
E.H. has never met S.M.M. The father argues that he asked Parks about visitation, but no visitation was scheduled because he failed to submit to DNA testing. We have already concluded that he impeded a determination of his parentage. Without such determination, the father had no right to visitation. By the time that father's parentage was determined in April 2022, he was in jail. The father testified that he asked the mother if he could join in one of her virtual visitations with S.M.M., but the record is unclear whether he followed through with participation. The record also indicates that the father ceased communication with the Department after April 2021. Thus, a factfinder could reasonably infer that since that time he made no inquiry of the Department about his child's welfare.
We conclude that the evidence is legally and factually sufficient to show that the father has not regularly visited or maintained contact with S.M.M. See J.F.C., 96 S.W.3d at 266.
C. The father has demonstrated an inability to provide S.M.M. with a safe environment.
The father argues that the evidence is legally and factually insufficient to show that he was unable to provide S.M.M. with a safe environment. The father asserts that "nothing in the record other than his incarceration indicates that [he] demonstrated an inability to provide his child with a safe environment."
Several factors are relevant to whether a parent has demonstrated an inability to provide the child with a safe environment, including: (1) the degree to which a parent participated in services; (2) whether the parent had steady housing and employment; (3) whether the parent missed opportunities for counseling and a psychological evaluation. T. M. v. Tex. Dep't of Family &Protective Servs., No. 03-21-00174-CV, 2021 WL 4692471, at *17 (Tex. App.-Austin Oct. 8, 2021, no pet.) (mem. op.); M.C. v. Tex. Dep't of Family and Protective Servs., 300 S.W.3d 305, 310 (Tex. App.-El Paso 2009, no pet.); In re J.J.O., 131 S.W.3d 618, 630 (Tex. App.-Fort Worth 2004, no pet.). "The factfinder should also consider a parent's financial resources, employment history, home environment, parenting skills, and demonstrated past ability or inability to care for a child." T. M., 2021 WL 4692471, at *17. "The availability of family members or other surrogate caregivers to take care of the children while a parent may be temporarily unable to do so should also be considered." Id. "The burden is not on the parents to prove that they can provide a safe environment for the children; the burden is on the Department, as the party seeking termination of parental rights, to prove that the parents are unable to provide a safe environment for the child." Id.
Here, the evidence showed that the father did not participate in services because he impeded the determination of his parentage of S.M.M. until after he was in jail on a pending felony charge. Parks testified that no services were available for a parent in county jail. The father testified that S.M.M. was his first child. The evidence supported an inference that the father could not provide S.M.M. with a safe and stable environment. He was homeless for the pendency of this case, and although he testified that he worked for a security company earning "probably, like, $8 an hour," he said he did not keep that job for long "because it wasn't enough to take care of the business that I needed to take care of." The father did not testify about any other employment. Parks also testified about the father's instability and financial situation. She mentioned that she gave the father seven business days to provide a DNA sample "just due to his instability . . . I did give him up to seven days . . . business days." The father testified that he had financial resources to take care of a child, but nothing in the record supports that conclusory statement.
E.H. also testified that he had an extensive criminal history, and that he was in jail at the time of trial. "Intentional criminal activity that exposes a parent to incarceration is conduct that endangers the physical and emotional well-being of a child." In re V.V., 349 S.W.3d 548, 554 (Tex. App.-Houston [1st Dist.] 2010, pet. denied) (citing Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) ("[I]mprisonment is certainly a factor to be considered by the trial court on the issue of endangerment.")); see Avery v. State, 963 S.W.2d 550, 553 (Tex. App.- Houston [1st Dist.] 1997, no writ) (holding parent's past criminal conduct, before and after child's birth, relevant to showing of inability to parent). The trial court as factfinder could have reached a negative conclusion about the father's ability to parent based on his extensive criminal history and instability.
Finally, while the court could have credited Connie's interest in placement of S.M.M. in favor of the father, the only evidence in the record suggesting that Connie might be acting as a surrogate for the father was his testimony that, as children, he and his sisters promised to look after each other's children, if possible and necessary, to keep them out of the foster care system. Here, the evidence showed that the father told Parks about his sisters, but he did not give Parks contact information for Connie because he did not have it. Instead, he gave Parks contact information only for Theresa. Although Connie testified, she made no mention of any agreement or arrangement with the father for her to care for S.M.M. on his behalf. Cf. In re R.L.T., No. 07-02-0332-CV, 2003 WL 21458782, at *2 (Tex. App.-Amarillo June 24, 2003, no pet.) (mem. op.) (holding that when termination is based on parent's incarceration and inability to care for child for at least two years, any surrogate caregiving arrangement must arise through agreement or arrangement with incarcerated parent; evidence that another person may be willing or able to care for child is not sufficient).
We conclude that the evidence is legally and factually sufficient to show that the father demonstrated an inability to provide S.M.M. with a safe environment. See J.F.C., 96 S.W.3d at 266.
The record-sparse as it is in some regards-reveals the father's "wholesale lack of parenting beyond the moment of conception," despite the evidence that he believed S.M.M. to be his child as early as during the mother's pregnancy. V.V., 349 S.W.3d at 553-54. The evidence shows that E.H. impeded a determination of his parentage and reveals his complete lack of contact with S.M.M.: he has never seen her, paid support, or made any arrangements to provide her with food, clothing, shelter, or care.
"Abandonment can mean more than a physical leave-taking. It can also mean to turn one's back on a duty that one has." In re T.M.Z., 665 S.W.2d 184, 187 (Tex. App.-San Antonio 1984, no writ). Historically, courts considering whether a father committed constructive abandonment have considered whether a father knew of the pregnancy and believed the child to be his. Compare Prokopuk v. Offenhauser, 801 S.W.2d 538, 540 (Tex. App.-Houston [1st Dist.] 1990, writ denied) (determining, under predecessor statute's version of constructive abandonment, that father's parental rights could not be terminated because no duty to support child "would arise if a father does not know of an illegitimate child"), with T.M.Z., 665 S.W.2d at 187 (holding, under predecessor statute, that evidence was sufficient to terminate father's rights when father committed predicate act of abandoning pregnant mother during pregnancy and after birth of child).
Based on the evidence at trial, the trial court could have formed a firm belief or conviction that the father constructively abandoned S.M.M., and the disputed evidence is not so significant that a reasonable factfinder could not form a firm belief or conviction of this finding. See id. We hold that the evidence is legally and factually sufficient to support the finding of constructive abandonment, and we overrule the father's first issue.
III. The evidence is legally and factually sufficient to support the trial court's finding that termination of the father's parental rights is in S.M.M.'s best interest.
In his second issue, the father argues that the evidence was legally and factually insufficient to show that termination of his parental rights is in the best interest of S.M.M. The father argues that evidence relevant to the Holley factors was poorly developed at trial. See Holley, 544 S.W.2d at 371-72. We consider the factors for which there is some evidence in the record.
Desires of the child.
S.M.M. was removed just after birth. She has spent nearly the entirety of her life with her foster parents. "When a child is too young to express his desires, the factfinder 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." In re A.H.L., No. 01-16-00784-CV, 2017 WL 1149222, at *5 (Tex. App.-Houston [1st Dist.] Mar. 28, 2017, pet. denied) (mem. op.). Parks testified that S.M.M. was bonded to her foster parents and family, she was developing appropriately, and she was "very happy." S.M.M. has spent no time with the father; she has never met him. This factor weighs in favor of termination of parental rights.
Emotional and physical needs of the child now and in the future.
S.M.M. has no known special medical, physical, developmental, or psychological needs. However, she was only about 18 months old at the time of trial and will require care for at least the next 16 years until she reaches the age of majority. This factor is neutral.
Emotional and physical danger to the child now and in the future.
The father testified about his history of homelessness and extensive criminal history, both of which create a risk of instability should S.M.M. be placed in his care. This factor weighs in favor of termination.
Parental abilities of the individuals seeking custody, plans for the child, and stability of the home or proposed placement.
We explained, supra, the evidence that shows the father lacks parental abilities when we considered whether the evidence was sufficient to support a finding that the father demonstrated an inability to provide S.M.M with a safe environment.
The foster parents, however, have cared for S.M.M. since her placement with them shortly after her birth. Both Parks and the child advocate testified that the foster parents took good care of S.M.M., who was thriving and bonded to them. A family plan filed November 30, 2020, and admitted without objection at trial, stated: "[S.M.M.] is adored by her foster family. They enjoy having [S.M.M.] in their home." The foster family also attended at least one permanency hearing and E.H.'s termination trial.
Connie testified that she is also seeking custody and had filled out the home study paperwork. She also testified that the Department had recently visited her home. The evidence shows that Connie has raised several children who are thriving academically in high school and college. Connie testified that she had the time and resources to care for S.M.M.
Parks testified that the Department's plan had been for S.M.M. to be adopted by her foster parents. Once the father's parentage was established by DNA testing, the Department moved forward with a home study on Connie. Parks testified that the policy is to keep children with relatives when possible.
Here, the evidence showed that the Department had not yet finalized its plan for S.M.M.'s adoption, and that both the foster family and the biological aunt were interested in adopting S.M.M. The lack of evidence about definitive plans for permanent placement and adoption of S.M.M. is not dispositive on these best-interest factors. See In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013) (quoting In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)). In C.H., the Supreme Court of Texas explained:
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.
These factors weigh in favor of termination.
Based on the entire record, the trial court could have formed a firm belief or conviction that termination of the father's parental rights was in the best interest of S.M.M., and the disputed evidence is not so significant that a reasonable factfinder could not form a firm belief or conviction of this finding. See J.F.C., 96 S.W.3d at 266. We hold that the evidence is legally and factually sufficient to support the best interest finding, and we overrule the father's second issue.
IV. The trial court did not abuse its discretion by appointing the Department sole managing conservator of S.M.M.
When the parental rights of all living parents of a child are terminated, the trial court must appoint a "competent adult, the Department of Family and Protective Services, or a licensed child-placing agency as managing conservator of the child." Tex. Fam. Code § 161.207(a); see In re J.D.G., 570 S.W.3d 839, 856 (Tex. App.- Houston [1st Dist.] 2018, pet. denied). Conservatorship determinations are reviewed for an abuse of discretion and will be reversed only if the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); J.D.G., 570 S.W.3d at 856. An order terminating the parent-child relationship divests a parent of legal rights and duties with respect to the child. See TEX. FAM. CODE § 161.206(b). Once we overrule a parent's challenge to an order terminating his parental rights, the trial court's appointment of the Department as sole managing conservator may be considered a "consequence of the termination." In re A.S., 261 S.W.3d 76, 92 (Tex. App.-Houston [14th Dist.] 2008, pet. denied); see also J.D.G., 570 S.W.3d at 856.
Because we have overruled the father's challenges to the trial court's order terminating his parental rights, the order divested Father of his legal rights and duties related to S.M.M. See TEX. FAM. CODE § 161.206(B); J.D.G., 570 S.W.3d at 856. Consequently, the father lacks standing to challenge the portion of the order appointing the Department as S.M.M.'s conservator. See J.D.G., 570 S.W.3d at 856 (affirming termination of father's parental rights and holding that father, who had been divested of his legal rights to child, could not challenge conservatorship determination).
We overrule the father's third issue.
Conclusion
We affirm the trial court's decree of termination.