Opinion
NO. 03-20-00342-CV
11-04-2020
G. S., Appellant v. Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 273,181-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING MEMORANDUM OPINION
G.S. (Father) appeals from the trial court's de novo order appointing the Texas Department of Family and Protective Services as the managing conservator of his four children and terminating his parental rights. See Tex. Fam. Code § 201.015 (addressing de novo hearing before referring court). In its de novo order, the trial court found by clear and convincing evidence that a statutory ground for terminating Father's parental rights existed and that termination was in his children's best interest. See id. § 161.001(b)(1)(E), (2). On appeal, Father contends that the evidence was legally and factually insufficient to support the trial court's findings. For the following reasons, we affirm the trial court's de novo order appointing managing conservator and decree of termination.
We refer to G.S. by his initials or as Father, and to the children's mother as Mother. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. Mother's parental rights to the children were not terminated, and she is not a party on appeal.
BACKGROUND
In February 2018, the Department filed an original petition in a suit affecting the parent-child relationship and requested an order for protection of the children in an emergency arising from domestic violence between Mother and Father. At that time, the ages of the four children were 13, 12, 6, and 4. In a supporting affidavit, a Department investigator averred about a domestic violence incident involving Father striking Mother in the stomach and face in front of the children and the police responding to the incident. The investigator also described other domestic violence incidents that the children reported witnessing. The two youngest children reported an incident between Father and Mother in which Father cut Mother's lip with a knife and Mother tried to stab Father. The 12-year-old child reported that "her parents physically fight with each other." The 13-year-old child recalled a "physical altercation happening between his parents" to which the police responded and stated that he remembered his parents fighting on one occasion where Mother fell to the floor and her head was bleeding and another occasion when the other children were in the house and the child had to intervene because Father was hitting Mother. The investigator also averred about the parents' prior involvements with the Department in 2014 and 2017 and Father's criminal history, which included June 2014 charges of terroristic threat and discharge of firearm, concerning his threat to "shoot" a person who reported the family to Child Protective Services.
The record contains conflicting evidence about whether this incident occurred in January 2017 or 2018. According to the police incident sheet that was admitted as an exhibit during the de novo hearing, it occurred on January 10, 2017.
The trial court signed an order for protection of the four children in an emergency, and the children were placed in foster care. In March 2018, the Department provided Father with a copy of his family service plan, which included completing an initial drug test and not participating in criminal activities or using illegal drugs, but he refused to sign the plan. In a status review order dated April 12, 2018, the trial court ordered Father to follow the Department's family service plan. Father was arrested in May 2018 for DWI, tested positive for cocaine in June 2018, failed to comply with other requested drug testing, had an outstanding warrant for his re-arrest concerning the DWI beginning in December 2018, and did not visit with the children after 2018 or pay court-ordered child support.
The final hearing before the associate judge occurred on April 19 and September 30, 2019. Father did not personally appear, but he was represented by court-appointed counsel. At the beginning of the April 19 hearing, the trial court took judicial notice of the file and admitted without objection the Department's final report to the Court and the CASA report as exhibits. The witness on that day was the current conservatorship caseworker who had been assigned to the case since August 2018. He testified that the Department's goal for the children was unrelated adoption with the concurrent goal of kinship adoption, that a potential placement was the children's maternal grandmother who lived in Georgia, and that the Department was in the process of obtaining approved placement under the Interstate Compact on the Placement of Children (ICPC) with the maternal grandmother. He further testified that if placement under the ICPC was approved, the Department would seek that placement, which the children were "comfortable" with "as long as they [could] all be together." The Court then recessed the hearing.
During the resumed hearing on September 30, 2019, the trial court admitted without objection the Department's final report, an amended CASA report, Father's family service plan, drug test results showing that Father tested positive for cocaine in June 2018, and the information and complaint concerning Father's arrest for DWI in May 2018. The witnesses on that day were the conservatorship caseworker, the CASA worker assigned to the case, the Mother, and the maternal grandmother, who testified by telephone. The maternal grandmother wanted the children to live with her and testified that she "would do [her] best to take care of them." The caseworker, who was no longer working at the Department after May 2019, testified that because the Department had not completed the ICPC request on the Texas side, the children would not have permanency for some time and that they did not have permanency in their current placements. The older two children were placed together, and the younger two children were placed together in a different home.
Concerning Father's parental rights, the Department's position was that they should be terminated. The caseworker testified that he had had limited contact with Father and that Father was not having visits with the children when the caseworker left the Department. In the caseworker's opinion, it was not in the children's best interest to return the children to the parents based on, among other reasons, "the issues involving the initial removal," which he believed was "domestic violence." The CASA worker testified that "the original start of this case was domestic violence" between the parents, that it had been "quite awhile" since he had any contact with Father, and that Father did not return his phone calls. He further testified that Father "never has done anything during this whole process," he had "no idea" where Father lived, it had been months since Father had any contact with the children, and "[t]he children never talk about any contact with him."
Mother admitted to domestic violence between her and Father prior to the Department's involvement but testified that she was no longer in a relationship with him and that it had ended about eight months earlier. She did not know where Father was and did not believe that the children should be returned to him "[b]ecause he doesn't really care for them." Although she testified that the children loved Father and that he was never abusive toward them, she testified that he had an "iffy relationship" with them, and she did not think that he would be willing to help financially if the children were placed with their maternal grandmother.
Following the final hearing, the associate judge signed an order appointing managing conservator and decree of termination as to Father's parental rights. The judge found by clear and convincing evidence that Father engaged in conduct and placed his children with persons who engaged in conduct that endangered the physical and emotional well-being of the children and that termination of his parental rights was in the best interest of the children. See Tex. Fam. Code § 161.001(b)(1)(E), (2).
Father requested a de novo hearing, and the trial court held a hearing via the internet on June 8, 2020. The witness at the de novo hearing was Father, and the trial court admitted the police incident sheet from the domestic violence incident that occurred on January 10, 2017, and the following documentation concerning Father's DWI in May 2018: the police offense report; the information; the bond forfeiture and order for re-arrest signed on December 6, 2018; and an order granting community supervision signed on May 1, 2020. The trial court also considered the transcripts and exhibits from the two-day hearing before the associate judge. See id. § 201.015(c) (authorizing referring court to consider record from hearing before associate judge).
In his testimony, Father provided his version of the events giving rise to the Department's involvement with the children and his conduct before and during the case. Father denied that there had been domestic violence in the children's presence or that he had a problem with cocaine or alcohol. He claimed that the police incident sheet was false, that the Department "falsified the paperwork to kidnap [his] children to make [him] try to pay for them," and that there was "paper tampering at the drug test venue." He testified that he did drug tests, providing "[m]ore than three" clean tests and documentation to the caseworker, but that his tests were "put up under somebody's else's name with their information." Although Father admitted that he did not have visits with the children after 2018, he testified that when he did have visits with them, they were "wonderful," and the children enjoyed seeing him and were not afraid of him. He further testified that he did not appear for hearings in this case because he "was threatened by [the Department's counsel] and the last judge" and denied that his failure to appear was because he had a warrant out for his arrest for most of the case.
Following the hearing, the trial court signed a memorandum of ruling adopting the associate judge's decision and the de novo order appointing managing conservator and decree of termination that is the subject of this appeal.
ANALYSIS
Standard of Review
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 Tex. Fam. Code § 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) (explaining that 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 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.
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 and consider undisputed contrary evidence to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re A.C., 560 S.W.3d 624, 630-31 (Tex. 2018); In re J.F.C., 96 S.W.3d at 266. "Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding against all the evidence favoring the finding." In re A.C., 560 S.W.3d at 631. "Evidence is factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true." Id.; see In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (explaining that, in factual sufficiency review, court of appeals "should not supplant [fact-finder]'s judgment with its own").
Endangerment
In his first issue, Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding that Father engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children's physical or emotional well-being. See Tex. Fam. Code § 161.001(b)(1)(E).
"'Endanger' means 'to expose to loss or injury; to jeopardize.'" In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (quoting Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). "Although 'endanger' means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury." Id. "Endangerment does not have to be established as an independent proposition, but can be inferred from parental misconduct alone," and courts may look to conduct "both before and after the child has been removed by the Department." Pruitt v. Texas Dep't of Fam. & Protective Servs., No. 03-10-00089-CV, 2010 Tex. App. LEXIS 10272, at *13-14 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.). The relevant inquiry under subsection (E) is whether evidence exists that the endangerment of the child's well-being was "the direct result of Appellant's conduct, including acts, omissions, or failures to act." In re M.E.-M.N., 342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet. denied) (citation omitted). "Additionally, termination under subsection (E) must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent." Id.
Father argues that "[t]he evidence presented at trial against [him] is practically non-existent," that drug use alone is not sufficient to support an endangerment finding, that his drug test results "were not made a part of" this record, and that none of the Department's witnesses testified about his drug use. Father relies on his own testimony that he did not have a problem with cocaine and alcohol, that he completed drug testing for the Department but that his tests were "put up under somebody's else's name with their information," and that he provided "more than three" clean drug tests to the Department. He further argues that there was no evidence of any drug-related criminal activity by him or connecting the "one alleged positive drug test to any acts that endangered his children" and that "[n]o one testified about any of [Father]'s behaviors that endangered the children." He relies on his testimony that there was no domestic violence in the home and that reports and other documents to the contrary were false, Mother's testimony that Father never harmed the children, and an alleged lack of testimony detailing the domestic violence incident that led to the children's removal.
Mother, however, admitted that there was domestic violence between her and Father prior to the children's removal, and the evidence included the Department's final report to the Court that describes the domestic violence as "[o]ngoing," including the reported incident between the parents involving knives that occurred in the children's presence, and the police incident sheet that detailed the domestic violence incident in January 2017 in which Father "struck" Mother with all four children present. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ("Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment.").
Further, the record includes a copy of Father's positive drug test for cocaine in June 2018, Father's service plan requiring drug testing, and the Department's final report listing required drug tests that he missed. See In re M.E.-M.N., 342 S.W.3d at 263 (stating that "parent's decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, supports a finding that the parent engaged in conduct that endangered the child's physical or emotional well-being" (citation omitted)); In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.) ("A factfinder reasonably could infer that [parent's] failure to submit to the court-ordered drug screening indicated she was avoiding testing because she was using drugs."); In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (same); see also In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) ("[A] parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct."). The evidence also included the December 2018 bond forfeiture and order for re-arrest of Father concerning his DWI from May 2018, and the order signed May 1, 2020, granting community supervision in which Father pleaded nolo contendere for this offense. See In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.) ("[I]ntentional 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." (citation omitted)).
Although Father denied that there had been domestic violence between him and Mother in the presence of the children and claimed that the Department and the police had falsified reports and paperwork, the trial court reasonably could have disbelieved this testimony and credited the evidence of domestic violence between Father and Mother before the children were removed and Father's illegal drug use and criminal activity during the pendency of this case in reaching its endangerment determination. See In re J.J.O., 131 S.W.3d 618, 632 (Tex. App.—Fort Worth 2004, no pet.) (explaining that, in bench trial, trial court judges credibility of witnesses and determines weight to be accorded to their testimony); see also In re S.B., No. 07-19-00146-CV, 2019 Tex. App. LEXIS 9695, at *29 (Tex. App.—Amarillo Nov. 5, 2019, pet. denied) (mem. op.) (observing that "as the trier of fact, the trial court resolved credibility issues and conflicts in the evidence against [parent]" and concluding that evidence was sufficient to support predicate ground for termination).
After carefully reviewing the record, we conclude that the evidence was legally and factually sufficient to support the trial court's finding that Father engaged in conduct that endangered the physical or emotional well-being of his children. See Tex. Fam. Code § 161.001(b)(1)(E); In re A.C., 560 S.W.3d at 630-31; In re M.E.-M.N., 342 S.W.3d at 262. We overrule Father's first issue.
Best Interest
In his second issue, Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination of his parental rights was in his children's best interest. See Tex. Fam. Code § 161.001(b)(2).
Relevant factors in assessing the best interest of a child include: (i) the 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, 2010 Tex. App. LEXIS 10272, at *22-23.
Father argues that there was no evidence presented regarding the emotional and physical needs of the children now and in the future, the emotional and physical danger to the children now and in the future, the parental abilities of Father and the Department, the programs available to assist the Father, the plans for the children, the acts or omissions of Father that would indicate that existing parent-child relationship is not a proper one, or any excuses for Father's acts or omissions, and that there is minimal evidence about the children's desires and the stability of the home or proposed placement. The exhibits, however, included the Department's final report, the CASA reports, and the Department's family service plan for Father. These exhibits document Father's conduct before and during the case up to the September 2019 hearing, including that he did not stay in contact with the Department or his children or comply with court-ordered services; the children's placements throughout the case; and the Department's plans for the children.
Although the children were not in placements with permanency and in two separate placements, the evidence showed that they were doing well, being taken care of in their placements, and having sibling visits. The Department's plan was for the maternal grandmother to take all four children if placement under the ICPC was approved, and the children were "comfortable" with being placed with their grandmother as long as they are all placed with her. Grandmother also testified about her plans and available resources for taking care of the children and her desire to do so. Further, although Father testified during the de novo hearing that his visits with his children were "wonderful" and that they were not afraid of him, and Mother testified during the hearing before the associate judge that the children loved Father, Father admitted that he had not visited with the children since 2018, the CASA worker testified that "[t]he children never talk about any contact with him," and Mother testified that the children had an "iffy relationship" with Father when they did see him. See In re S.N., 287 S.W.3d 183, 193 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (concluding that father's inconsistent and missed visits supported trial court's best-interest determination).
In addition to the evidence about the children's desires, their current and possible placements, and Father's lack of contact with them and the Department, the trial court could have credited the evidence of domestic violence between Father and Mother and Father's criminal activity and drug use during the case in its best interest determination. See In re C.H., 89 S.W.3d at 27-28; Pruitt, 2010 Tex. App. LEXIS 10272, at *22-23; see also A.C. v. Texas Dep't of Fam. & Protective Servs., 577 S.W.3d 689, 705-06 (Tex. App.—Austin 2019, pet. denied) (summarizing evidence supporting best interest finding); Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet. denied) (explaining that "a fact finder may infer that past conduct endangering the well being of a child may recur in the future if the child is returned to the parent").
The trial court also reasonably could have disbelieved Father's excuses for his conduct during the case. See In re J.J.O., 131 S.W.3d at 632 (explaining that trial court in bench trials determines credibility issues and weight of evidence). For example, Father admitted that he did not provide any financial support to the children during the case but contended that the Department "falsified the paperwork to kidnap [his] children to make [him] try to pay for them." The trial court reasonably could have disbelieved this testimony when other evidence showed that domestic violence between Father and Mother precipitated the Department's involvement with the family. Further, as to Father's failure to appear for the hearings before the associate judge, the trial court reasonably could have disbelieved Father's testimony that he did not appear for the hearings because he "was threatened by [the Department's counsel] and the last judge" when the evidence showed that he had an outstanding warrant for his re-arrest after his bond was forfeited in December 2018. See id.
Both the caseworker and the CASA worker testified that they believed it was in the children's best interest to terminate Father's parental rights and provided the reasons for their beliefs. The caseworker's reasons included "the issues involving the initial removal," which he believed was "domestic violence." The CASA worker's reasons included that Father "has done nothing through this whole process," "hasn't done any services," and "hasn't tried to do anything," and that "the children never really talk about him." Mother also testified that she did not believe that the children should be returned to Father because "he doesn't really care for them." She further testified that he had not provided any financial support for the children, she did not know where he was, and she did not believe that he would assist the maternal grandmother financially if the children were placed with her.
Viewing the evidence under the legal sufficiency standard of review, we conclude that the trial court could have formed a firm belief or conviction that terminating the parental rights of Father was in his children's best interest. See Tex. Fam. Code § 161.001(b)(2); In re A.C., 560 S.W.3d at 630-31; In re J.F.C., 96 S.W.3d at 266. Further, viewing the evidence under the factual sufficiency standard of review, we conclude that the evidence is such that the trial court reasonably could have formed a firm belief or conviction that termination of Father's parental rights was in the best interest of his children. See In re A.C., 560 S.W.3d at 631. Thus, we conclude that the evidence was legally and factually sufficient to support the trial court's best interest finding. We overrule G.S.'s second issue.
In his brief, Father lists the "Issues Presented" challenging the sufficiency of the evidence as Issues 2 and 3 but subsequently refers to them as Issues 1 and 2. In his "Summary of the Argument," he raises challenges to the sufficiency of the evidence to support the trial court's predicate and best-interest findings, but he also appears to argue that trial counsel provided ineffective assistance by "failing to object to the exhibits admitted into evidence without proper foundation being laid by the Department." He, however, does not reference this argument again in his briefing or cite any authority to support it. Thus, to the extent he raises ineffective assistance of counsel, we conclude that he has waived this argument because of inadequate briefing. See Tex. R. App. P. 38.1(i) (requiring brief to contain "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record").
CONCLUSION
For these reasons, we affirm the trial court's de novo order appointing managing conservator and decree of termination.
/s/_________
Melissa Goodwin, Justice Before Justices Goodwin, Triana, and Smith Affirmed Filed: November 4, 2020