Opinion
No. 01-04-00017-CV
Opinion Issued April 7, 2005.
On Appeal from the 314th District Court, Harris County, Texas, Trial Court Cause No. 2003-00805J.
Donna Everson, Houston, TX, William B. Connolly, William B. Connolly Assoc., Houston, TX for Appellant.
Sandra D. Hachem, Senior Asst. County Atty., Houston, TX, for Appellee.
Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
MEMORANDUM OPINION
Appellant, Carolyn Lewis, appeals the trial court's judgment terminating the parent-child relationship between her and her daughter, C.L. Lewis contends that the evidence provided at trial is factually insufficient to support the trial court's finding that termination of the parent-child relationship is in the best interest of the child. We affirm.
C.L.'s father, David Lockridge, is not a party to this appeal.
Facts
In June 2002, Lewis pleaded guilty to the state jail felony of forgery of a commercial instrument. The trial court placed her on five years deferred adjudication community supervision, imposed a $500 fine, and ordered her to serve fifty-eight days' confinement. The terms of her community supervision required Lewis to (1) refrain from using alcohol and drugs; (2) complete three hundred hours of community service; (3) report to her community supervision officer each month; (4) submit to random urine specimen analysis; (5) secure stable employment; (6) pay the required fees; (7) submit to an alcohol and drug evaluation and treatment plan; and (8) pay restitution in the amount of $1,716.64.
While incarcerated, Lewis learned she was pregnant with her first child. Lewis testified that, after her release, she completed the drug assessment and that her community supervision officer did not require that she participate in any rehabilitation program. Lewis, however, admitted that she was not honest with her community supervision officer about her continued drug abuse.
During her pregnancy, Lewis received prenatal care at Hermann Hospital. Doctors considered her pregnancy to be high risk for a number of factors, including her age and her rheumatoid arthritis. Knowing this information, Lewis continued to use cocaine throughout her pregnancy. Lewis testified that she knew at the time that her cocaine use endangered the well-being of her child.
Lewis gave birth to C.L. on January 23, 2003, and both she and her baby tested positive for cocaine. Five days later, the Texas Department of Protective and Regulatory Services ("TDPRS" or "the agency") filed its original petition for protection of a child, for conservatorship, and for termination in a suit affecting the parent-child relationship. The agency, the trial court, and Lewis entered into an agreed order, placing C.L. in the temporary managing conservatorship of the agency. The agency offered services to Lewis to help her overcome her cocaine addiction and to reunite her with C.L. In particular, the agency offered to enroll Lewis in a seventeen-week outpatient drug treatment program that included parenting classes and therapy. In return, the TDPRS requested that Lewis procure stable housing and employment. Lewis, however, chose not to participate in or complete the program. She explained at trial that she failed to participate because she continued to use cocaine.
Between January and May 2003, Lewis visited C.L. on two occasions, at a location close to her home. After the agency transferred the visits to another location, Lewis did not attempt to visit her daughter. Lewis explained that, at the time, she had been evicted from her home, and had no money, nor any transportation. Lewis further stated that she was not honest with the agency's case worker concerning her continuing drug addiction.
In February 2003, Lewis failed to submit a urine sample as required by the terms of her community supervision. She admitted that the sample would have tested positive for cocaine, had she submitted one. In March 2003, Lewis submitted a urine sample that tested positive for cocaine.
In May 2003, the State moved to adjudicate Lewis's guilt for the state jail felony forgery conviction, contending that she had failed to comply with various terms of her community supervision, including: testing positive for cocaine; failing to pay required fees; failing to meet with her probation officer; and failing to complete her community service requirements. As a result of these allegations, the trial court ordered Lewis to six months' confinement, but allowed her to remain on the deferred adjudication community supervision.
While incarcerated, Lewis signed a release of information, completed a twelve-step drug rehabilitation program, and completed a six-month substance abuse program. Each day, Lewis attended three group therapy sessions, and she completed parenting classes twice per week. As of the date of trial in this case, Lewis remained incarcerated but was to be released on community supervision within one week. The record contains no information concerning her progress outside incarceration other than the four months before her arrest for violations of her community supervision. According to Lewis, she and the child's father, Lockridge, were united in a common law marriage for thirteen years, and they continued to live together after C.L.'s birth. Lockridge has a history of criminal behavior. In 1983, a trial court found him guilty of attempted capital murder and aggravated robbery and assessed punishment at twenty years' confinement. More recently, in November 2001, Lockridge pleaded guilty to possession of cocaine, and the trial court assessed punishment at one hundred eighty days' confinement.
Lewis stated that she planned to live with Lockridge after her release, and that they were going to "work on" their marriage. Lockridge did not participate in any of the agency services directed at reuniting Lewis with C.L. He never signed a statement of paternity, nor submitted to a paternity test, as requested by the agency. Lockridge made no attempts to meet with C.L. or to confer with Lewis's caseworker until June 27, 2003, when Lewis was jailed.
Caseworker Sheila Caesar testified that the agency diligently tried to work with Lewis and that the agency's initial goal was to reunite C.L. with her mother and father. This goal changed to termination at a planning meeting in July 2003. The agency contends this change was due to Lewis's incarceration.
At trial, Lewis maintained that her parental rights should not be terminated because during her incarceration she underwent treatment and participated in parenting classes. Upon her release from jail, Lewis planned to go to a halfway house, so that she could continue receiving treatment and assistance in obtaining employment. Lewis also stated that she would complete the requirements of her deferred adjudication community supervision and abstain from using drugs.
This trial commenced in November 2003. After the trial, the trial court terminated Lewis's parental rights. The trial court denied Lewis's motion for new trial and found her to be indigent. This appeal followed.
We originally dismissed this case for non-payment of fees. Lewis moved for rehearing. On August 14, 2004 we signed an order (1) abating the appeal and remanding the case to the trial court for the limited purpose of appointing appellate counsel to represent Lewis; (2) granting the motion for rehearing, and withdrawing our opinion and judgment issued April 16, 2004; (3) ordering the district court clerk to prepare and file the clerk's record, at no cost to Lewis; and (4) ordering Lewis's new appellate counsel to file a brief on behalf of Lewis by September 30, 2004. On October 15, 2004, new counsel filed his amended notice of appointment, representation, and designation of lead counsel.
Standard of Review
In termination of parental rights cases, "due process requires that the State support its allegations by at least clear and convincing evidence" to reduce the risk of erroneous termination. Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391-92 (1982); In re B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003). "`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." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (quoting Tex. Fam. Code Ann. § 101.007 (Vernon 2002)); see also Robinson v. Tex. Dep't of Protective Regulatory Servs., 89 S.W.3d 679, 688 (Tex.App.-Houston [1st Dist.] 2002, no pet.).
In our review of a challenge to the factual sufficiency of the evidence, we give "due consideration" to evidence that the fact finder reasonably could have found to be clear and convincing. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (citing In re C.H., 89 S.W.3d at 25). We examine whether the evidence is such that a fact finder reasonably could form a firm belief or conviction about the truth of the State's allegations, and whether the disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. Id. An appellate court should not reverse if, considering all of the evidence in the record, the fact finder reasonably could have formed a firm conviction or belief that the parent committed one of the alleged grounds of termination and that the termination is in the best interest of the child. In re C.H., 89 S.W.3d at 27.
Discussion
The natural right that exists between parents and their children is one of constitutional dimension. See In re J.F.C., 96 S.W.3d at 273; see also In re C.H., 89 S.W.3d at 26. A parent's right to "the companionship, care, custody and management of his or her children" is a constitutional interest "far more precious than any property right." Santosky, 455 U.S. at 758-59, 102 S. Ct. at 1397 (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1972)). In a case terminating parental rights, therefore, we strictly scrutinize the proceedings and strictly construe the law in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Under Texas law, to terminate a parent-child relationship, a trial court must find by clear and convincing evidence that (1) termination is in the best interest of the child; and (2) the parent committed one or more of the acts specifically named in the Texas Family Code as grounds for termination. See Tex. Fam. Code Ann. § 161.001 (Vernon 2002); In re L.M., 104 S.W.3d 642, 647 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Proof of one element does not relieve the petitioner from establishing the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). It is inconsequential whether the actions occurred before or after birth. In re S.F., 32 S.W.3d 318, 322 (Tex.App.-San Antonio 2000, no pet.); Avery v. State, 963 S.W.2d 550, 553 (Tex.App.-Houston [1st Dist.] 1997, no writ).
In her sole issue, Lewis concedes that she committed the act of abuse, but contends that the evidence is factually insufficient to support, by clear and convincing evidence, the trial court's finding that termination of her parental rights is in C.L.'s best interest. The agency responds that the evidence was such that a fact finder reasonably could have formed a firm belief or conviction that termination of Lewis's parental rights was in C.L.'s best interest.
In determining the best interest of the child, courts examine a number 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 individual seeking custody; (5) the programs available to assist the individual; (6) the plans for the child by these individuals; (6) the stability of the home; (7) the acts or omissions of the parent that indicate that the existing parent-child relationship is not a proper one; and (8) any excuse for parent's acts or omissions. Holley, 544 S.W.2d at 371-72; see also In re K.C.M., 4 S.W.3d 392, 394-95 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). These factors, often referred to as the " Holley" factors, are not exhaustive; some listed may not apply, while other factors not included on the list may also be appropriate. In re C.H., 89 S.W.3d at 27. Evidence that proves one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. Id. at 28. Using these factors, we examine whether the evidence is factually sufficient to support the trial court's finding that termination is in C.L.'s best interest.
Child's Desires
The record does not indicate C.L.'s desires because she was an infant at the time of trial.
Child's Emotional and Physical Needs
Lewis contends that no evidence exists that C.L.'s needs are better served by termination. The caseworker testified that C.L. does not have any special needs, but that C.L.'s current placement in a foster home was meeting both her physical and emotional needs, and that it is in C.L.'s best interest to remain in the foster home.
Possibility of Emotional and Physical Danger
Lewis ingested cocaine during her high-risk pregnancy, and both mother and child tested positive for cocaine at C.L.'s birth. Additionally, Lewis continued to use drugs after giving birth to C.L., knowing that she needed to remain drug-free to be reunited with her child. The trial court reasonably could have considered the possibility of emotional or physical danger to C.L. if Lewis were to relapse upon her release from jail. The trial court also reasonably could have considered the emotional danger to C.L. from a continuing relationship with a mother who has not been, and may not be, present in C.L.'s life because of drug use or incarceration, thus disrupting any permanency or stability for C.L. Lewis presented little evidence of any support system in place — i.e., friends or relatives that could care for C.L. — should such situations arise. Her mother and her aunt reside in Fort Worth, and Lewis's counsel conceded to the trial court that neither was able to offer C.L. a place to live. The trial court reasonably could have inferred that Lewis's risk of relapse is high because she continued to ingest cocaine while on community supervision for a felony conviction, and while her child lived in protective custody from the time of birth.
Acts or Omissions Indicating Improper Parent-Child Relationship
Lewis's drug abuse, and her failure to comply with the agency's reunification plan before her incarceration, establishes an improper parent-child relationship. Her drug abuse during her pregnancy endangered C.L.'s well-being. Lewis testified that she was aware that her drug use endangered her child. The trial court reasonably could have inferred that Lewis was not a prudent parent.
Excuse for the Parent's Acts or Omissions
Lewis stated that "I have no excuse for my addiction. I've asked God for forgiveness for that, that's part of my past but my future, I'm gonna stay clean and sober." She stressed her desire to move on and provide a loving home for her daughter.
Parental Abilities of Lewis and the Individuals Seeking Custody
From birth, Lewis never undertook parental responsibility for C.L. Her parental responsibilities have been performed by others, namely the agency and foster parents. Lewis notes that she completed drug rehabilitation and parenting classes while incarcerated, but before her incarceration, she did not demonstrate any ability to maintain a stable home and employment, or to remain drug-free. Lewis violated numerous conditions of her community supervision, including: testing positive for cocaine; failing to pay required fees; failing to meet with her probation officer; and failing to complete her community service requirements. As a result, the trial court adjudicated her guilty of a felony. During Lewis's incarceration, she never contacted her caseworker to inquire as to C.L.'s health or welfare.
Plans for the Child by the Individual or Agency Seeking Custody
The record contains evidence that Lewis plans to move into a halfway house that does not allow children. She testified that she can obtain employment, and desires to offer C.L. a loving home. She also testified that she will complete parenting classes after her release. In contrast, the caseworker for the agency testified that C.L. is adoptable, and that prospective adoptive parents exist.
Stability of the Home or Proposed Placement
As of the date of trial, Lewis did not have a home. She planned to live at a halfway house for up to one year, and she stated that "employment was not a problem." The halfway house, however, would not allow C.L. to live with Lewis. Further, Lewis admitted that her husband is not involved with C.L. and that she has not discussed the situation with him, therefore, she is not aware of his "status on it." It is unclear if Lockridge, who has a significant criminal history, could be an influence on C.L.'s life. The caseworker testified that she believes it is in C.L.'s best interest to remain in her foster home and that her current foster mother expressed a desire to adopt C.L.
Programs Available to Assist Individuals Seeking Custody to Promote the Best Interest of the Child
Lewis stresses that she has completed parenting, substance abuse, and other classes during her incarceration. After her child was born, however, Lewis refused to complete similar courses that the agency recommended. During that time, she refused to comply with the requirements of her community supervision. Lewis tested positive for cocaine, failed to pay the required fees, and failed to meet with her probation officer. Her choices resulted in her arrest and subsequent incarceration.
Application of the Holley Factors
Lewis contends that the evidence described above is factually insufficient to support the trial court's judgment. She relies on In re K.C.M. 4 S.W.3d 392. In K.C.M., this court held that the evidence was factually insufficient to support the trial court's finding that termination of parental rights was in the best interest of the child. 4 S.W.3d at 399. K.C.M., like the present case, involved a mother who abused drugs and was incarcerated.
We note that this court decided K.C.M. using a standard of review that the Texas Supreme Court has since disapproved. See In re C.H., 89 S.W.3d at 25-26. Now, the appropriate appellate standard for reviewing parental termination factual findings is whether the evidence is such that a fact finder reasonably could have formed a firm belief or conviction about the truth of the State's allegations. Id. at 25. This standard retains the deference an appellate court should have for the fact finder's role. Id. at 26.
In K.C.M., the mother, Martin, signed a plan with the TDPRS requiring her to submit to random drug testing. Martin lived with K.C.M.'s paternal grandmother, who agreed to monitor the situation. Id. at 396. During K.C.M.'s first year, Martin tested positive for marihuana. Id. She also admitted to using crack cocaine on a daily basis. Id. Martin was arrested for possession of crack cocaine and placed on deferred adjudication. Martin was later arrested for possession of a crack pipe. Id. As a result, she was adjudicated guilty, and sentenced to one year's confinement. At the time of her trial, Martin had seventy-five days left to serve in jail. Id. at 396.
Lewis contends that she, like Martin, completed drug treatment and parenting programs and achieved trustee status while incarcerated. Lewis further contends that she has a better education, a more significant work history, and has secured post-incarceration transitional plans. Finally, she urges us to consider the fact that she had six days left in jail until her release, while Martin had seventy-five more days.
When the mother in K.C.M. began using cocaine, however, she left her child in her grandmother's care. Here, Lewis has no relatives that are willing to care for her child, as her counsel conceded at trial. Lewis testified that relatives might help with C.L., but would not be able to take the child. Also, the mother in K.C.M. had developed a relationship with her child for at least a year before her incarceration. During the first four months of C.L.'s life, when Lewis was not incarcerated, she visited C.L. only twice and continued her drug use. Further, while in jail, the mother in K.C.M. wrote numerous letters to the agency to inquire about her child's well-being and discussed her plans to reunite with her child. Id. at 396. Here, Lewis testified that she discussed C.L. when her caseworker visited her in jail. No evidence exists, however, to indicate that Lewis contacted her caseworker to inquire about C.L.'s well-being during her incarceration. K.C.M.'s mother did nothing to endanger her child after she signed the service plan. Here, Lewis signed a service plan with the agency shortly after giving birth; however, she continued her cocaine use in violation of her community supervision and the plan. Finally, the mother in K.C.M. had only seventy-five more days to completely satisfy the sentence requirements of her felony conviction. Id. In contrast, although Lewis was scheduled for release from jail in only six days, her felony sentence requirements remain in effect. Lewis remains on the five year deferred adjudication community supervision that began on June 21, 2002. If Lewis fails to comply with the conditions of her community supervision, as she previously has done, she is subject to confinement for 180 days to two years. See Tex. Pen. Code Ann. § 12.35(a)-(b) (Vernon 2003). Lewis thus faces a possible lengthier incarceration than K.C.M.'s mother, should the criminal trial court revoke Lewis's deferred adjudication.
We hold that the trial court reasonably could have formed a firm conviction or belief that termination is in C.L.'s best interest, and that factually sufficient evidence supports the trial court's decision. We overrule Lewis's issue. Cf. Robinson, 89 S.W.3d at 688-89 (affirming termination of parental rights when appellant was out of prison before trial, but failed to remain drug-free).
Conclusion
We hold that the evidence is factually sufficient to support the trial court's finding that terminating the parent-child relationship is in the best interest of C.L. We therefore affirm the judgment of the trial court. We deny any pending motions as moot.