Opinion
No. 04-17-00798-CV
05-16-2018
IN THE INTEREST OF A.M.O., a Child
MEMORANDUM OPINION
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-02217
Honorable Richard Price, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
This is an accelerated appeal from an order terminating appellant's parental rights to his child, A.M.O. In a single issue, the appellant-father challenges the sufficiency of the evidence in support of the trial court's finding that termination of his parental rights was in A.M.O.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2017). We affirm the trial court's termination order.
BACKGROUND
Anita Chavarria, an investigative worker with the Texas Department of Family and Protective Services ("the Department"), testified that the Department became involved with A.M.O., who was two years old at the time, following an unannounced Department visit in which appellant tested positive for methamphetamines, amphetamines, and marijuana. Following the visit, Chavarria conducted separate interviews with two of appellant's other three children, L.O. and C.O. Both C.O. and L.O. made outcries of abuse and neglect claiming they were often left at home unattended without food, that the home was infested with roaches, rats, dog feces and urine, that appellant would smoke marijuana and methamphetamines in their presence, would take them along in the car with him to purchase drugs, and would physically abuse them. When Chavarria spoke with appellant, he denied all allegations of abuse and neglect, but did admit to ongoing marijuana use.
Belinda Miller, a caseworker with the Department, testified that appellant had not completed any of the services on his service plan, that he had recently had his parental rights terminated as to his other children, and that he has continuously engaged in criminal activity throughout the duration of this case. She testified that appellant is currently incarcerated with no estimated release date and he has not attempted to have contact with A.M.O. since December 2016, despite having numerous opportunities to do so. She also testified that A.M.O. has been living with his foster family since January 2017 and that they want to permanently adopt him. The caseworker believed it was in A.M.O.'s best interest for appellant's parental rights to be terminated.
Appellant also testified at the hearing. Appellant admitted to: a prior drug conviction; a prior domestic violence conviction; two pending state and federal drug charges; and testing positive for drugs during the pendency of this case. Appellant also admitted to having his parental rights terminated as to his other three children, to not having contact with A.M.O. since December 2016, and that he is unsure of when he will be released from federal prison. Appellant testified that prior to A.M.O.'s removal, he would spend every day with him, that he had a strong bond with the child, and that A.M.O. was his reason to live. Appellant admitted to not completing the services on his service plan, but stated that while he has been incarcerated, he has completed a drug class and is attempting to enroll in a family violence class.
PREDICATE FINDINGS
Appellant does not challenge the sufficiency of the evidence to support the predicate statutory grounds for terminating his parental rights. The trial court concluded there was clear and convincing evidence that appellant: (1) had previously had his parental rights terminated with respect to another child based on a finding that he: (a) knowingly placed or knowingly allowed the child to remain in conditions that endangered the child's physical or emotional well-being, or (b) engaged in conduct or knowingly placed the child with someone who engaged in conduct that endangered the child's physical or emotional well-being; (2) constructively abandoned the child; and (3) failed to comply with the provisions of a court order specifically establishing the actions necessary for appellant to obtain the return of child. TEX. FAM. CODE ANN. § 161.001(b)(1)(M), (N), (O) (West Supp. 2017).
BEST INTEREST
Appellant challenges the sufficiency of the evidence supporting the trial court's finding that termination of his parental rights was in A.M.O.'s best interest. The parent-child relationship may be terminated only if the trial court finds by clear and convincing evidence one or more of the statutory grounds enumerated in section 161.001(b)(1) and that termination is in the child's best interests. Id. §§ 161.001(b)(1), (2). Clear and convincing evidence requires "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." Id. § 101.007. There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, it is equally presumed that "the prompt and permanent placement of the child in a safe environment is . . . in the child's best interest." TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2017).
Our best-interest analysis is guided by consideration of the non-exhaustive Holley factors. The Department was not required to prove all of these factors, and the absence of evidence about some factors would not preclude the factfinder from reasonably forming a strong conviction that termination is in the child's best interest, particularly if the evidence was undisputed that the parental relationship endangered the safety of the child. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Some cases, however, will present complex facts in which "paltry evidence" relevant to each Holley factor would not suffice to uphold a factfinding that termination is required. Id. We review the legal and factual sufficiency of the evidence under the standards of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). The focus of our review is whether the evidence, as a whole, is sufficient for the trial court to have formed a strong conviction or belief that termination of appellant's parental rights was in A.M.O.'s best interest. See In re C.H., 89 S.W.3d at 27.
These include:
(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, (6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
At trial, evidence was presented that appellant's other children had made outcries of abuse and neglect. See In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013) ("Part of [the] calculus includes the harm suffered or the danger faced by other children under the parent's care."). The trial court could infer that appellant's past abusive conduct towards C.O. and L.O. represented a threat to A.M.O.'s physical and emotional well-being. Moreover, the unchallenged predicate finding that appellant's parental rights to his three other children were terminated on endangerment grounds is probative of a finding that termination is in the best interest of the child. See In re C.H., 89 S.W.3d at 28 (holding the same evidence may be probative of both section 161.001(b)(1) grounds and best interest); see also In re M.N.Y.-M., No. 04-16-00047-CV, 2016 WL 2936343, at *3 (Tex. App.—San Antonio May 18, 2016, pet. denied) (mem. op.) (finding evidence of parental termination as to other children relevant in a best interest determination).
A parent's illegal drug use supports a finding that termination of the parent-child relationship is in the best interest of the child. See In re D.M.M.., No. 14-16-00664-CV, 2017 WL 61847, at *5 (Tex. App.—Houston [14th Dist.] Jan. 5, 2017, pet. denied) (mem. op.) ("Continued illegal drug use [by the parent] . . . is conduct that jeopardizes parental rights and may be considered as establishing an endangering course of conduct, and that termination is in the best interest of the child."). The trial court had before it evidence that appellant tested positive for methamphetamines, amphetamines, and marijuana. See id. (noting the trial court can give "great weight" to the "significant factor" of drug use and drug-related conduct). Appellant also admitted to being previously convicted for domestic violence. See In re A.J.M., No. 04-17-00681-CV, 2018 WL 1511824, at *6 (Tex. App.—San Antonio Mar. 28, 2018, no pet. h.) (mem. op.) ("A parent's criminal background is particularly relevant if it demonstrates a tendency towards violence, especially violence against family members.").
Although standing alone a parent's incarceration will not support a termination order, it is an appropriate factor the court may consider in evaluating the best interest of the child. See In re B.C.S., 479 S.W.3d 918, 926 (Tex. App.—El Paso 2015, no pet.) ("Evidence of criminal conduct, convictions, and imprisonment . . . may establish an endangering course of conduct."); see also In re S.M.L., 171 S.W.3d 472, 479 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (stating a parent's incarceration weighs in favor of parental termination because it demonstrates an inability of the parent to provide a safe environment for the child). Appellant's testimony established that he was incarcerated on a state drug charge from December 2016 to March 2017, was released, and is now presently incarcerated on federal drug charges with no anticipated release date. See In re S.M.L., 171 S.W.3d at 479 ("When [a parent] . . . repeatedly commit[s] criminal acts that subject them to the possibility of incarceration, that can negatively impact a child's living environment and emotional well-being."); see also In re X.J.L., No. 04-17-00466-CV, 2017 WL 4655102, at *3 (Tex. App.—San Antonio Oct. 18, 2017, no pet.) (mem. op.) (stating that a parent's inability to maintain a lifestyle free of criminal activity is relevant to a best-interest determination because it subjects the child to instability and endangers their physical and emotional well-being).
In a best interest determination, a court may also consider whether a parent complied with their court-ordered service plan. See In re S.B., 207 S.W.3d 877, 888 (Tex. App.—Fort Worth 2006, no pet.) (holding a failure to comply with a service plan supports a finding that termination is in the best interest of the child). The trial court's unchallenged predicate finding that appellant failed to comply with his court-ordered service plan supports the court's best interest finding. See In re C.H., 89 S.W.3d at 28. Appellant also has not had any contact with A.M.O. since December 2016, despite having occasions to do so. See In re K.S., 420 S.W.3d 852, 855-56 (Tex. App.—Texarkana 2014, no pet.) (stating that a lack of contact between the parent and child weighs in favor of termination because it demonstrates a "lack of resolve" or disinterest in parenting the child).
Lastly, the caseworker testified that A.M.O. has been with his foster family since January 2017 and has bonded with them. The foster parents provide for A.M.O.'s medical, financial, and educational needs and want to continue doing so by formally adopting A.M.O. They are a stable home placement for A.M.O. and have demonstrated their ability to provide for A.M.O.'s emotional and physical needs. See In re G.V., No. 14-02-00604-CV, 2003 WL 21230176, at *5 (Tex. App.—Houston [14th Dist.] May 29, 2003, pet. denied) (mem. op.) (noting the stability a proposed placement promises "weigh[s] heavily in the court's finding that termination is in the best interest" of the child).
Having reviewed the record, we hold the evidence is legally and factually sufficient to support the trial court's finding that termination is in A.M.O.'s best interest.
CONCLUSION
The trial court's order is affirmed.
Rebeca C. Martinez, Justice