Opinion
NO. 03-17-00714-CV
04-05-2018
L. B., Appellant v. Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. C2016-1646A , HONORABLE MELISSA McCLENAHAN, JUDGE PRESIDING MEMORANDUM OPINION
Appellant L.B. appeals the district court's final order terminating his parental rights to his child J.R.B. The court found that Appellant engaged in conduct or knowingly placed the child with persons who engaged in conduct endangering the child's physical or emotional well-being, constructively abandoned the child, and failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the child. See Tex. Fam. Code § 161.001(b)(1)(E), (N), (O). The court further found that termination of Appellant's parental rights was in the child's best interest. See id. § 161.001(2). On appeal, Appellant challenges the factual and legal sufficiency of the evidence supporting the court's best-interest finding. We will affirm the order of termination.
We refer to the parties by their roles in this appeal. See Tex. R. App. P. 9.8(b).
The court also terminated the parental rights of J.R.B.'s mother E.M., who did not appeal.
BACKGROUND
The facts are summarized from the testimony and exhibits admitted into evidence at trial.
The court heard testimony from several witnesses during a bench trial in 2017, including Appellant, his mother, his stepfather, the child's mother E.M., a Department caseworker, and a Court Appointed Special Advocate (CASA) supervisor.
Appellant and E.M. testified that they are the parents of the child, who was born February 7, 2013. The child was four years old when the case was tried. Appellant and E.M. are a couple but were not living together at the time of trial because he was incarcerated. E.M. also has two children from a previous relationship with another man.
Appellant and E.M. each testified that the underlying case was their third case with Child Protective Services (CPS) involving this child. Appellant denied that he used drugs during the first CPS case, but admitted that he did not cooperate with CPS in that case because he "had gotten with another girl" and "wasn't around." He also admitted that he did not take custody of the child when CPS informed him that E.M. was using drugs because by that time, E.M. was already with a family member and getting help. Appellant testified that in the second CPS case he admitted to using marihuana while caring for the child. He said that he "finished CPS," completing "all the classes and pass[ing] all the drug tests." He acknowledged that at the start of this third CPS case, he tested positive for opiates. He also acknowledged that he used drugs while the child was home, when he was supposed to be caring for the child. He stated that he and E.M. "didn't have a drug problem all our life. It was just this last year. . . . And then we had a hard time . . . getting help."
The witnesses referred to CPS and the Department interchangeably.
Appellant testified that he completed an inpatient drug treatment program and then went to a halfway house. He acknowledged that he was ordered to complete random drug screens for the Department, but admitted that he did not submit to these requests, even after returning from drug treatment. Appellant testified that his last communication with the Department caseworker was about six months before trial.
Appellant denied using drugs since he completed his drug rehabilitation in December 2016, but he and E.M. were indicted as co-defendants for possession of heroin in March 2017. Indictments for Appellant's charges of possession of heroin and aggravated robbery were admitted into evidence. Appellant had been incarcerated on those charges for three months at the time of trial. He testified that the charges resulted from a case of mistaken identity. He admitted that he did not know how long he would be in jail, that he had "no clue" whether he might be released on probation, that he did not know how long his current criminal situation would last, and that he cannot care for the child because of his incarceration. Appellant testified that he wants to retain his parental rights and for his mother and stepfather to care for the child until Appellant's release. Appellant stated that his mother and stepfather also want him to have the child, that they will take care of the child "as long as it takes" until Appellant gets out, and that they do not want to adopt the child. He also stated that if released, he would like to live with his mother and stepfather if allowed to and if the child was there.
Appellant admitted that he saw the child just once during the entire case. He also admitted that he was homeless for two or three weeks during the case. He further admitted that he did not provide any child support for the child, although he thought he was employed during the entire case. Appellant stated that he pays child support for his four other children.
E.M. testified that she admitted to using marihuana and heroin while she was pregnant with the child and admitted that she was "using with [Appellant]." She stated that she became involved in her first CPS case when the child was about one year old and went to live with Appellant's mother and stepfather ("the grandparents") for sometime between three to six months. The child was then returned to her. E.M. testified that she did not recall becoming involved with the Department again in 2014 and admitting to using marihuana while the child and his siblings were in her care. She did recall that the child and his siblings most recently came into the Department's care in October 2016, that she agreed to the Department becoming the temporary managing conservator, and that during this case the child was placed with the grandparents. E.M. acknowledged that she had a criminal case pending against her at the time of trial and that she had used illegal substances every other day since 2016, including when she was the child's primary caregiver. Nevertheless, Appellant testified that E.M. does not have a drug problem, that he was not concerned about her not completing any treatment program, and that he would be comfortable with the child being placed with her. E.M. testified that she planned to continue her relationship with Appellant after he is released from incarceration and that she wanted the child placed with Appellant's parents if her parental rights were terminated.
Department caseworker Angela Calderon testified that she had worked on the case involving Appellant and E.M.'s family since October 2016, when E.M. and Appellant were living together with the child and his siblings. Calderon stated that CPS removed the child from his parents on December 23, 2016, because of the parents' substance abuse and concerns for the child's safety. Calderon testified that CPS placed the child with the grandparents, and just over six months later on June 29, 2017, removed the child from the grandparents' home and placed him in a foster-to-adopt home that could meet his needs for "permanency."
Calderon stated that the child was removed from the grandparents' home because they doubted that he was their grandson and expressed some misgivings, such as "we weren't planning this," "my husband is going to retire," and "this just wasn't what our future was." Calderon also stated that the grandparents made excuses for Appellant's behavior and were not protective of the child from Appellant. Calderon testified that she asked Appellant's mother if she was willing to put the child's needs first, and Appellant's mother continued to discuss Appellant. Calderon told Appellant's mother that she wanted to offer all the services that the Department could for Appellant, but because he is an adult and the child is not, the child's needs come first if Appellant's mother wanted to take care of him. Calderon testified that a home study of the grandparents' home was conducted and denied based on concerns about their "protective capacity," including Appellant's mother's statement that she was responsible for administering and controlling dosages of medications that Appellant was taking to keep him off of illegal drugs.
Calderon testified that she asked Appellant's mother for a copy of Appellant's medications, and that the medications were all expired.
Calderon also testified about Appellant's illicit-drug use and noncompliance with his service plan. She stated that E.M. told her that she and Appellant used drugs together and that Appellant used drugs while he was around the children. Calderon also stated that Appellant's service plan required him to maintain contact with her, but his communication was sporadic. Additionally, Calderon testified that Appellant failed to:
• provide any child support for the child,
• avoid drug users and people involved with criminal activity (instead he was arrested for possession of a controlled substance),
• complete a required psychological evaluation,
• inform her of where he lived so that she could verify whether he had a safe home, and
• submit to random drug tests (Calderon stated that Appellant tested positive for morphine, methamphetamines, and heroin on his first test, then tested positive for morphine and marihuana on his second test, and failed to participate in the next seven tests).
Calderon testified that the child was thriving in his foster-to-adopt home, he has bonded with his foster parents and foster siblings, and the foster parents are interested in adopting him. She stated that she would be "gravely concerned" if the child was placed with his parents or the grandparents because "it would just be a matter of time" before the child was again exposed to the same substance abuse. She said that the child has become really happy and has a regular life; another placement would take that from him. Calderon further stated that termination of Appellant's parental rights was in the child's best interest.
Appellant's stepfather testified that he and his wife are interested in adopting the child. He acknowledged that during the case, he had some doubts about his ability to keep the child long term, "[b]efore [he] knew really what was expected from [him]." He said that he thought he and his wife "were just going to be foster parents for a while until the parents got, hopefully, their act together." He reiterated that although they were planning on keeping the child "in the foster case style," "[i]f we have to adopt him, we'll adopt him. We just don't want to let him go." Appellant's stepfather noted that Appellant completed rehab and has done "a lot" of what he needed to do to prevent the termination of his parental rights, but he admitted that Appellant cannot provide the child with the life that he deserves. Appellant's stepfather stated that he did not know at what point in the future that Appellant should have visits with the child. Appellant's stepfather testified that Appellant had been using drugs since approximately 2012, when Appellant met the child's mother. He further testified that he did not think he would be able to determine whether Appellant is or is not using drugs if he were to see him.
Appellant's mother testified that Appellant's parental rights should be terminated and stated that "he's not fit to be a parent." She stated that she maintains phone contact with Appellant "whenever he can call" and that she places $50 on his phone monthly. She stated that she does not know what Appellant looks like when he is using drugs, but she thought maybe he would be acting hyper if he had been using them. She testified that she would not allow Appellant to live with her when he is released and that she would not give the child back to Appellant. She denied having a good relationship with caseworker Calderon and denied telling her that she and Appellant's stepfather were unsure about being a permanent placement for the child. She acknowledged telling Calderon that they were not sure that the child was their biological grandson and asked whether they would "do a paternity." But she stated that the child resembles his father and that they have "just kind of let everything go because we're assuming that he is family." She testified that she wants to adopt the child.
CASA supervisor Layla Coleman testified that the child is doing "really well" in his foster-to-adopt placement, that he is bonded with his foster parents, and that it is in the child's best interest to remain there. She stated that the foster parents are sure about providing the child with a stable, loving, and permanent home. Coleman acknowledged her concerns, based on conversations that the grandparents had with CPS and the attorney ad litem, that the grandparents were "wishy-washy" about being the child's permanent placement. Coleman testified that it was in the child's best interest for Appellant's parental rights to be terminated. She stated that the child should have an opportunity to be adopted by a safe and stable home and not be "worried about being abandoned again." She also stated that she did not believe that Appellant could give his child a safe and stable home, noting that Appellant continued engaging in criminal activity, or associating with those who engage in criminal activity, and was currently incarcerated.
At the conclusion of the trial, the court entered an order terminating Appellant's and E.M.'s parental rights to the child. This appeal followed.
DISCUSSION
In a proceeding to terminate the parent-child relationship, the petitioner must establish by clear and convincing evidence a predicate violation—i.e., that the parent's acts or omissions constitute a statutory ground for termination—and that termination of parental rights is in the child's best interest. Tex. Fam. Code § 161.001(b)(1), (2); In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Here, Appellant challenges only the court's finding that termination was in the child's best interest, contending that it was not supported by factually and legally sufficient evidence. See Tex. Fam. Code § 161.001(b)(2).
We evaluate the legal sufficiency of the evidence in parental-rights-termination cases by reviewing all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the challenged finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id.
We evaluate the factual sufficiency of the evidence by reviewing the entire record, and we uphold the finding unless the disputed evidence that could not reasonably have been credited in favor of the finding is so significant that a reasonable factfinder could not have formed a firm belief or conviction that the allegation was true. In re A.B., 437 S.W.3d 498, 502-03 (Tex. 2014). We do not weigh witness credibility issues that depend on appearance and demeanor, and when credibility issues are reflected in the record, we must defer to the factfinder's determinations if they are not unreasonable. In re J.P.B., 180 S.W.3d at 573.
Sufficient evidence supported best-interest finding
In determining whether termination of parental rights was in the child's best interest, we may consider a non-exhaustive list of factors including: (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 the individuals seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that 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); see Tex. Fam. Code § 263.307 (noting that "prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest" and setting forth factors to consider in evaluating parent's willingness and ability to provide child with safe environment). Proof of all these factors is not a prerequisite to termination of parental rights, and the absence of some factors does not preclude the court from finding by clear and convincing evidence that termination is in the child's best interest, especially when there is undisputed evidence that the parental relationship endangered the child. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence that proves one or more of the statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. Id. at 28.
Several of the Holley factors overlap with the statutory factors set forth in section 263.307 of the Family Code, which include: the child's age and physical and mental vulnerabilities; the frequency and nature of out-of-home placements; the magnitude, frequency, and circumstances of the harm to the child; whether the child has been the victim of repeated harm after the initial report and intervention by the department; whether the child is fearful of living in or returning to the child's home; 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; 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; whether there is a history of substance abuse by the child's family or others who have access to the child's home; whether the perpetrator of the harm to the child is identified; 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; the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; whether the child's family demonstrates adequate parenting skills; and whether an adequate social support system consisting of an extended family and friends is available to the child. Tex. Fam. Code § 263.307.
1. Unchallenged findings as to statutory grounds for termination
Appellant contends that "[m]uch of the evidence provided by the Department concerning what is in the child's best interest is brief and conclusory in nature." We disagree. Initially, we note that Appellant has not challenged the sufficiency of the evidence supporting the court's findings that termination of his parental rights was proper because he endangered the child's physical or emotional well-being, he constructively abandoned the child, and he failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the child. See Tex. Fam. Code § 161.001(b)(1)(E), (N), (O). Evidence at trial supported the court's findings on the statutory grounds for termination, specifically: (1) Appellant admitted that he used drugs while the child was home and when Appellant was supposed to be caring for the child, which was conduct that endangered the child; (2) Appellant admitted that he had only seen the child once during the entire case and that he had previously left E.M. during the first CPS case—when the child was about one year old—because he had "gotten with another girl," which supports the court's finding of abandonment of the child; and (3) Appellant admitted that he failed to comply with several aspects of his service plan, including stopping communication with the Department's caseworker, refusing to inform the Department about where he was living, missing seven of his nine scheduled drug tests, testing positive on the two tests that he took, and continuing his involvement in criminal activity during the case. The evidence supporting these statutory grounds for termination also constitutes evidence that termination of Appellant's parental rights is in the child's best interest. See In re C.H., 89 S.W.3d at 28.
2. Child's emotional and physical needs and emotional or physical danger
As to the emotional and physical needs of the child and any emotional or physical danger to the child, there was evidence that Appellant used drugs while the child was home and in Appellant's care, that Appellant was homeless for two or three weeks during the case, and that his inability to avoid criminal activity during the case resulted in his incarceration at the time of trial. See In re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.) (noting that fact finder may measure parent's future conduct by his past conduct in determining whether termination of parental rights is in child's best interest); In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.) (concluding that "intentional criminal activity which exposed the parent to incarceration is relevant evidence tending to establish a course of conduct endangering the emotional and physical well being of the child"). Further, Appellant testified that he did not think that E.M.—who admitted to using drugs every other day since 2016—had a drug problem, and that he would be comfortable with the child being placed with her. There was evidence that the child was at risk of contact with E.M. in the future if Appellant retained his parental rights because E.M. testified that she planned to continue her relationship with Appellant upon his release from incarceration. Appellant articulated no plans for the future for him or the child other than stating that he wanted to live with his mother, stepfather, and the child after being released from incarceration.
3. Parental abilities of individuals seeking custody and stability of home
As to the parental abilities of the individuals seeking custody and the stability of the home or proposed placement, Appellant's mother testified that Appellant is "not fit to be a parent." Appellant's stepfather testified that Appellant could not provide the child with the life that he deserves. Calderon and Coleman testified that the child has bonded with his foster-adopt parents. Calderon testified that the foster-adopt parents are able to meet the child's needs, that they will not endanger the child, that they are willing to adopt him, that the child has become really happy and is "thriving" with them, and that termination of Appellant's parental rights was in the child's best interest. Coleman similarly testified that the child is doing "really well" with his foster-adopt placement and that it is in the child's best interest to remain there. She testified that the foster-adopt family offered the child permanency, stability, and a safe and loving home. She doubted that Appellant could provide the child with a safe and stable home given his continued involvement in criminal activity. She stated that the grandparents—whom Appellant wanted to care for the child until his release from incarceration—were "wishy-washy" about being the child's permanent placement. Calderon stated that she would be "gravely concerned" if the child were placed with his parents or the grandparents because he would eventually be exposed to substance abuse again. Calderon also stated that the grandparents had seemed unsure about providing a permanent home for the child, that they doubted he was their biological grandson, and that they were not protective of the child from Appellant. The grandparents testified that they want to adopt the child. Appellant's stepfather admitted that during the case, he had some doubts about keeping the child long term. Appellant's mother admitted asking Calderon about "do[ing] a paternity." Both of the grandparents admitted that they did not know what Appellant looks like when he is on drugs. Additionally, Appellant's stepfather testified that he did not think he would be able to determine whether Appellant was using drugs if he saw him, and that he did not know at what point in the future that Appellant should have visits with the child.
4. Parent's acts or omissions indicating parent-child relationship is not proper
As to the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper, Appellant testified that he was indicted for aggravated robbery and possession of a controlled substance—which according to his indictment was heroin—that he had been incarcerated for three months on those charges at the time of trial, that he did not know how long he would be in jail, that he could not care for the child because of his incarceration, and that the last time he was released from jail was in 2009. See In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (noting that parent's criminal history is non-dispositive factor in determining best interest of children); In re A.W.T., 61 S.W.3d at 89. Appellant admitted that he had not provided child support for the child, although he was employed throughout the case, and he did not claim to have any agreement with his mother and stepfather that no such assistance for the child was needed. See Jordan v. Dossey, 325 S.W.3d 700, 728 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (noting that there was no understanding that appellant would not be sending support for child because father could provide adequate support on his own); see also In re T.L.S., No. 01-12-00434-CV, 2012 Tex. App. LEXIS 10297, at *14-15 (Tex. App.—Houston [1st Dist.] Dec. 13, 2012, no pet.) (mem. op.) (noting lack of evidence showing that appellant made arrangements to provide assistance or had reached agreement with her mother, as caregiver of appellant's children, that no such assistance was needed). Appellant was not concerned that E.M. had not completed any drug treatment program, and he stated that he would have been comfortable having the child placed with her. Appellant admitted that this was his third CPS case (in the four years since the child was born), and he minimized the duration of his drug problem as not lifelong, but one that existed "just this last year." This claim conflicted with Appellant's own testimony that his second CPS case—more than one year ago—involved his marihuana use. It also conflicted with his stepfather's testimony that Appellant had been using drugs since 2012, when Appellant met the child's mother.
Viewing the evidence in the light most favorable to the court's findings, and assuming that the court resolved any disputed facts in favor of its findings, we conclude that the court could have formed a firm belief or conviction that termination of Appellant's parental rights was in the child's best interest. See Tex. Fam. Code § 161.001(b)(2). Further, considering the entire record, we conclude that any disputed evidence could have been reconciled in favor of the court's findings, such that the court could have formed a firm belief or conviction that termination of Appellant's parental rights was in the child's best interest. Thus, the evidence in this record is legally and factually sufficient to support the court's best-interest finding under section 161.001(b)(2) of the Family Code. We overrule Appellant's issue.
CONCLUSION
We affirm the district court's order of termination.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Goodwin and Field Affirmed Filed: April 5, 2018