Opinion
NO. 03-17-00754-CV
02-28-2018
J. M. and B. L., Appellants v. Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
NO. CV37,431, HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING MEMORANDUM OPINION
Raising six issues, J.M. and B.L. appeal from the trial court's final order terminating their parental rights, following a jury trial. They challenge the legal and factual sufficiency of the evidence to support the jury's findings on the statutory predicate grounds concerning B.L.'s parental rights and the legal and factual sufficiency of the evidence to support the jury's best interest findings. See Tex. Fam. Code § 161.001(b)(1), (2). Because we conclude that the evidence was legally and factually sufficient to support the challenged findings, we affirm the trial court's final order of termination.
We use initials to refer to the parents and their children. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
Background
Because the parties are familiar with the facts of the case and its procedural history, we do not recite them in the opinion except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
J.M. and B.L. are the parents of A.L., who was born in 2008, and J.M. and M.P. are the parents of A.M., who was born in April 2016. At the time A.L. was born in 2008, J.M. was living with her parents. According to J.M., B.L. had violated his parole and was "sent back to jail," but he was "occasionally" involved and had visitation with A.L. for the first few years of her life. Prior to April 2016, J.M. allowed A.L. to spend extended time with B.L.'s parents because she "wanted [A.L.] to have her grandparents, at least, in her life if her father wouldn't be there."
M.P. was a party in the underlying termination proceeding, but he executed a voluntary affidavit of relinquishment of his parental rights to his child, A.M., and the trial court entered an interlocutory order terminating his parental rights prior to the jury trial. M.P. has not appealed from the termination of his parental rights.
J.M. began living with M.P. in 2015, and A.L. began living with M.P.'s parents in January 2016. In March 2016, M.P. was driving a vehicle with a suspended driver's license, and J.M., who was pregnant with A.M. at the time, was a passenger. A police officer initiated a traffic stop and, during the traffic stop, the police officer found drugs and drug paraphernalia in the vehicle. M.P. was arrested, and, according to the officer, both M.P. and J.M. admitted that they had been drug users in the past, and M.P. had signs of drug use including burn marks on his lip and "rotting" teeth.
The Department of Family and Protective Services became involved with J.M. and M.P. shortly thereafter. A few days after A.M. was born in April 2016, the Department filed a petition for termination of parental rights and sought removal of A.L. and A.M. The trial court entered an order for protection, appointed the Department temporary sole managing conservator of the children, and placed both children with M.P.'s parents. A.L. already was living with M.P.'s parents, and they assumed care of A.M. as a newborn when she was released from the hospital after she was born. A few months later, J.M. and M.P. signed a family service plan. The Department, however, was unable to determine B.L.'s whereabouts, and eventually served him by substituted service.
After the case was extended for an additional six months, the case proceeded to a jury trial in October 2017. B.L. did not personally appear for the trial, but he was represented by appointed counsel. The Department's witnesses included the police officer who initiated the traffic stop in March 2016, the Child Protective Services (CPS) investigator who was involved in the removal of the children, other CPS caseworkers involved in the case, counselors who provided or attempted to provide services to J.M., and B.L.'s father and stepmother. J.M. also testified on her own behalf. Although the evidence of J.M.'s drug use prior to the Department's removal of her children and after April 2017 was disputed, J.M. admitted to using methamphetamine on a daily basis from May or June 2016 to April 2017, that she was not a stable person "at the moment," that she had not complied with some of the trial court's ordered tasks and services, that she had not paid child support, and that she only had one visit with her children during the pendency of the case. That visit was in May 2016. The evidence further showed that, during the pendency of the case, J.M. had continued to associate with persons with criminal records or unsavory reputations.
The evidence concerning B.L. was undisputed that, other than one phone call with the CPS investigator, he did not communicate with the Department, did not attempt to have contact with A.L., and did not provide financial assistance for A.L.'s care during the pendency of the case. Both B.L.'s father and stepmother testified about B.L.'s past drug and alcohol problems, criminal record, and his lack of a relationship with A.L. Neither one of them knew where B.L. was at the time of trial, and B.L.'s father testified that he had not talked with his son for "a couple of years or longer." B.L.'s stepmother testified that B.L. "[didn't] want the responsibility that it takes to do what it takes for A.L.," and she agreed that he "[had] not really ever contributed to the well-being of [A.L.]" She explained that he had called her "one day" several years before the trial and told her he had "[come] into some money from somewhere" and that he was in California and that "was the one and only call that [they] had from him." It was both of their beliefs that it was in A.L.'s best interest for B.L.'s parental rights to be terminated. J.M. also testified that she had not spoken with B.L. for years and that the phone number that she had for him "was no good."
The jury found that the parent-child relationship should be terminated between J.M. and her children and between B.L. and A.L. The trial court thereafter entered its order of termination in accordance with the jury's verdict, terminating J.M.'s parental rights based on section 161.001(b) (1)(D), (E), (F), (N), (O) of the Texas Family Code, and B.L.'s rights based on section 161.001(b)(1)(D), (E), (F), (N), and based on the jury's findings that termination of both parents' rights was in the children's best interest. See Tex. Fam. Code § 161.001 (b)(1) (D), (E), (F), (N), (O), (2). Both parents filed a motion for new trial, which was denied. This appeal followed.
Analysis
To terminate parental rights, the Department has the burden to prove one of the predicate grounds in section 161.001(b)(1) of the Texas Family Code and that termination is in the best interest of the child. See id. § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable standard of proof is the clear and convincing standard. Tex. Fam. Code § 161.206(a); see In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (due process requires clear and convincing standard of proof in parental termination cases). The clear and convincing standard is "'that measure or degree of proof which 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, 23 (Tex. 2002) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)); see also Tex. Fam. Code § 101.007 (defining "clear and convincing evidence"). Although "parental rights are of constitutional magnitude," "it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right." In re C.H., 89 S.W.3d at 26.
Appellants raise legal and factual sufficiency challenges to the evidence. Legal sufficiency review of the evidence to support a termination finding requires a court to "look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of the evidence to support a termination finding, an appellate court reviews the record to determine "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d at 25; see also In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (describing factual sufficiency standard of review in appeals from parental termination orders and noting that appellate court "must give due deference to a jury's factfindings" and "not supplant the jury's judgment with its own").
The Department argues that appellants failed to preserve their complaints on appeal challenging the legal and factual sufficiency of the evidence and assert that appellants did not file a motion for new trial. Appellants, however, filed a motion for new trial and challenged the legal and factual sufficiency of the evidence in the motion. See Tex. R. Civ. P. 324(b)(2) (requiring complaint in motion for new trial about factual sufficiency of evidence as prerequisite to making complaint on appeal); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992) (explaining that among ways to preserve "no evidence point" following jury trial is raising it in motion for new trial).
Statutory Predicate Grounds to Support Termination of B.L.'s Parental Rights
In appellants' first four issues, they challenge the legal and factual sufficiency of the evidence to support the jury's findings as to the predicate statutory grounds to support termination of B.L.'s parental rights. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (F), (N). Because termination of a parent's rights can stand on one statutory ground plus a best interest finding, we limit our review to appellants' fourth issue that challenges the evidence to support the ground set out in section 161.001(b)(1)(N) of the Family Code—constructive abandonment. See id. § 161.001(b)(1)(N); In re A.V., 113 S.W.3d at 362 (explaining that only one predicate ground is necessary to support termination of parental rights when there is also best interest finding).
To establish constructive abandonment under this section, the Department had to prove by clear and convincing evidence that: (i) B.L. constructively abandoned A.L. who had been in the temporary managing conservatorship of the Department for not less than six months; (ii) the Department made reasonable efforts to return A.L. to B.L.; (iii) B.L. had not regularly visited or maintained significant contact with A.L.; and (iv) B.L. had demonstrated an inability to provide A.L. with a safe environment. See Tex. Fam. Code § 161.001(b)(1)(N); In re J.J.O., 131 S.W.3d 618, 628-30 (Tex. App.—Fort Worth 2004, no pet.) (discussing elements of constructive abandonment ground for termination of parental rights).
B.L. limits his sufficiency challenge to the evidence concerning his demonstrated inability to provide A.L. with a safe environment. As support for his position that the Department's evidence was insufficient as to this element, B.L. focuses on the evidence that A.L. was voluntarily placed with M.P.'s parents before the Department filed suit and that the Department "readily admitted" that A.L.'s placement with them "was appropriate." He also argues that his family "remained willing to provide for and care for the child throughout the case and prior to the Department ever filing the case" and that there was no evidence that his parents were not an appropriate placement.
B.L. also cites In re A.S., 261 S.W.3d 76 (Tex. App.—Houston [14th Dist.] 2008, pet. denied), as support for his position that the Department's evidence was insufficient to support a finding that he had demonstrated an inability to provide A.L. with a safe environment. We find that case factually distinguishable. In that case, our sister court found the evidence factually insufficient to support a finding that an incarcerated father was unable to provide the child with a safe environment, explaining that the Department had failed to demonstrate that the father's relatives who had been identified were not appropriate placements. Id. at 90. In contrast with the incarcerated father in that case, B.L.'s whereabouts were unknown at the time of trial, the Department's search to locate him did not uncover that he was incarcerated, and his stepmother testified that he told her that he was in California the last time she spoke with him several years before the trial. B.L. also did not provide the Department with names of potential relatives that would be willing to provide A.L. with a safe environment as his surrogate caregiver or inform the Department that he was incarcerated. See id. at 89 (citing In re D.S.A., 113 S.W.3d 567, 573 (Tex. App.—Amarillo 2003, no pet.) (noting that incarcerated parent can provide safe environment for child through identification of friend, relative, or spouse as care provider)); see also In re B.D.A., No. 01-17-00065-CV, 2018 Tex. App. LEXIS 1111, at *25 (Tex. App.—Houston [1st Dist.] Feb. 8, 2018, no pet. h.) (mem. op.) (explaining that "[w]hen a party seeking termination has established that the incarcerated parent will remain in confinement for the requisite period, the parent must then produce some evidence as to how he would provide or arrange to provide care for the child during his incarceration.").
During the trial, B.L.'s attorney moved for a continuance, representing to the court that B.L.'s sister had spoken with B.L. and that he was in an inpatient rehabilitation facility in Wyoming and would be there for seven more weeks. No evidence, however, was presented to the jury to support B.L.'s location at the time of trial.
Here the evidence was undisputed that A.L. had been in the temporary managing conservatorship of the Department for more than six months, that B.L. was aware of the case and properly served, that B.L. did not have any contact with A.L. during the pendency of the case, and that the Department's attempts at communicating with B.L. had been unsuccessful. The jury further could have credited the evidence of B.L.'s past drug use, criminal activity, and imprisonment; his lack of participation in the case despite being aware of it; and his failure to stay in contact or provide assistance for A.L.'s care during her life to reasonably infer that B.L. had demonstrated an inability to provide a safe environment for A.L. See In re T.M., No. 02-09-00145-CV, 2009 Tex. App. LEXIS 9943, at *12-14 (Tex. App.—Fort Worth Dec. 31, 2009, pet. denied) (mem. op.) ("[T]he evidence establishes Father's inability to provide the children with any environment . . . much less a safe environment."); see also In re J.J.O., 131 S.W.3d at 629-30 (holding that evidence was legally and factually sufficient to support constructive abandonment where evidence showed that parent failed to maintain steady housing or employment, tested positive for drugs, and disappeared for several months during case); In re H.R., 87 S.W.3d 691, 699 (Tex. App.—San Antonio 2002, no pet.) (holding that evidence was legally and factually sufficient to support constructive abandonment where evidence showed that parent tested positive for drugs, failed to see child after certain date, failed to comply with service plan, failed to support child, and failed to hold steady job).
Viewing the evidence in the light most favorable to the constructive abandonment finding under subsection (N), we conclude that the jury could have formed a firm belief or conviction that B.L. constructively abandoned A.L. See Tex. Fam. Code § 160.001(b)(1)(N); In re J.F.C., 96 S.W.3d at 266. Further, based on our review of the record, we conclude that the evidence is such that the jury reasonably could have formed a firm belief or conviction about the truth of the Department's constructive abandonment allegations against B.L. See In re C.H., 89 S.W.3d at 25. Thus, we conclude that the evidence was legally and factually sufficient to support the jury's finding of constructive abandonment, overrule appellants' fourth issue, and decline to address their first, second, and third issues addressing the other statutory predicate grounds found by the jury. See In re A.V., 113 S.W.3d at 362.
Best Interest Findings
In their fifth and sixth issues, appellants challenge the legal and factual sufficiency of the evidence to support the jury's findings that termination of their respective parental rights was in the children's best interest. See Tex. Fam. Code § 161.001(b)(2). Relevant factors in assessing the best interest of a child include: (i) desires of the child, (ii) the stability of the home or proposed placement, (iii) parental abilities, (iv) the emotional and physical needs of the child now and in the future, (v) the emotional and physical danger to the child now and in the future, (vi) the plans for the child by the individual or agency seeking custody, (vii) the programs available to assist the individuals seeking custody to promote the best interest of the child, (viii) acts or omissions by the parent showing that the parent-child relationship was not proper, and (ix) any excuses for the parent's conduct. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex. Fam. Code § 263.307 (stating that "prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest" and listing factors that court should consider "in determining whether the child's parents are willing and able to provide the child with a safe environment"). No one factor is controlling, and evidence presented to satisfy the predicate ground finding may also be probative of the child's best interest. In re C.H., 89 S.W.3d at 27-28; Pruitt v. Texas Dep't of Family & Protective Servs., No. 03-10-00089-CV, 2010 Tex. App. LEXIS 10272, at *22-23 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.).
Evidence supported findings that J.M. loved her children, but other evidence demonstrated that she was unable to take care of her children or to provide them with a stable home. Her only visit with the children during the pendency of the case was in May 2016, and she did not pay child support or provide assistance for her children's care during the pendency of the case. J.M. admitted that she was not stable "at the moment" or ready to take care of the children at the time of trial and that supervised visits would be appropriate going forward if her rights were not terminated. The evidence showed that, during the pendency of the case, she was associating with persons with criminal records and unsavory reputations. She also admitted that she used methamphetamine on a daily basis for ten months during the pendency of the case, and evidence showed that she failed a drug test for methamphetamine in August 2017. As to B.L., he did not personally appear, take any steps to work with the Department, communicate or have any contact with A.L., or provide assistance for her care during the pendency of the case.
The evidence further showed that the children were safe and well taken care of in their current placement with M.P.'s parents who were A.M.'s paternal grandparents. M.P.'s mother testified about their relationship with the children and the circumstances in which they began taking care of A.L. in January 2016 and then A.M., as a newborn, in April 2016. She testified that she believed that the children loved each other and were happy in their home. She also testified about a medical issue that A.M. had and how it was being addressed appropriately. The CPS caseworkers agreed that the children were being well-taken care of in the current placement, that A.M.'s medical issue had been addressed appropriately and that, in their opinions, it was in the best interest of the children for the parents' rights to be terminated. One of the caseworkers explained her reasons as follows:
Because in the home they're currently at, they're safe, they're free from people that have a lengthy criminal history, they're free from individuals that have known CPS history, drug abuse problems. They're in a home consistently, they're in a good, loving environment. They have a bond to their current caregiver. That's what they've known for the last 18 months. They have not seen their mother since May of 2015. [sic] That bond is kind of tarnished right now. There's consistency there.B.L.'s stepmother agreed that it was in the best interest of A.L. for B.L.'s parental rights to be terminated. She explained, "he loves her but he doesn't want the responsibility to take care of her," and she did not know where B.L. was. She also testified that, although she hoped to have a relationship with A.L. going forward, she was willing to give up her rights as a grandparent to terminate B.L.'s parental rights. The Department's plan for the children was adoption in their current placement with M.P.'s parents.
Viewing the evidence in the light most favorable to the best interest findings, we conclude that the jury could have formed a firm belief or conviction that terminating the parental rights of J.M. was in the children's best interest and terminating the parental rights of B.L. was in the best interest of A.L. See Tex. Fam. Code § 161.001(b)(2); In re J.F.C., 96 S.W.3d at 266. Further, based on our review of the record, we conclude that the evidence is such that the jury reasonably could have formed a firm belief or conviction that termination of the parental rights of J.M. was in the best interest of the children and the termination of the parental rights of B.L. was in the best interest of A.L. See In re C.H., 89 S.W.3d at 25. Thus, we conclude that the evidence was legally and factually sufficient to support the jury's best interest findings. We overrule appellants' fifth and sixth issues.
CONCLUSION
Because we conclude that the evidence was legally and factually sufficient to support the challenged findings, we affirm the trial court's final order of termination.
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Goodwin and Field Affirmed Filed: February 28, 2018