Opinion
No. 07-16-00331-CV
03-03-2017
IN THE INTEREST OF A.O., A CHILD
On Appeal from the 320th District Court Potter County, Texas
Trial Court No. 86,941-D, Honorable Carry Baker, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
L.G., the father of A.O., appeals from a final order terminating his parental rights to A.O. Through two issues, L.G. challenges the sufficiency of the evidence supporting termination. We will affirm the order of the trial court.
To protect the child's privacy, we will refer to the father and the child by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8(b).
Background
A.O., a female child, was born in December 2014. In April 2015, A.O. was removed from the care of the man the Texas Department of Family and Protective Services believed to be her biological father and his wife. A.O. was removed after an allegation of neglectful supervision of the child by the alleged father and an allegation, later confirmed by a drug screen, that his wife was using methamphetamine while caring for the child. At that time, both A.O.'s mother and L.G., A.O.'s biological father, were incarcerated. The Department filed several pleadings, including an order for protection of a child in an emergency and an original petition for protection of a child. It later filed an amended petition seeking conservatorship and, in the alternative, termination of the parent-child relationship of A.O.'s mother and L.G to A.O. The Department alleged termination of L.G.'s parental rights to A.O. was proper under several grounds but, at the final hearing, proceeded only on the ground set forth in section 161.001(b)(1)(Q). See TEX. FAM. CODE ANN. § 161.001(b)(1)(Q) (West 2016).
Initially, a man other than L.G. claimed to be A.O.'s father. It was this man and his wife who were caring for A.O. at the time of her removal. When he later was found not to be the child's father, he was dismissed from the termination proceedings.
A.O.'s mother was incarcerated at the time the child was removed. She voluntarily relinquished her rights to A.O. and is not a party to this appeal.
At the final hearing held in the summer of 2016, L.G. appeared only through counsel. At that time, A.O. had lived with her foster parents since her April 2015 removal. During the final hearing, a Department caseworker testified that in January 2016, she learned from A.O.'s mother that L.G. might be the father of A.O. The caseworker testified she notified L.G. who then had a release date of sometime in 2018. Paternity testing later showed L.G. to be the father of A.O. At the final hearing, the Department introduced, among its other evidence, proof of L.G.'s prior convictions and elicited testimony from the caseworker that those offenses were "assaultive in nature."
The record indicates L.G. chose not to attend the final hearing in June 2016 because he was participating in classes at his prison facility. Missing class would require a long wait to retake and complete the class, perhaps hindering his chance of parole. L.G. did not give the court a reason for his absence at the continuation of the final hearing held in August.
After hearing the evidence presented, the trial court concluded clear and convincing evidence existed to support the termination of L.G.'s parental rights to A.O. under section 161.001(b)(1)(Q) and found by the same standard termination was in A.O.'s best interest. On appeal, appellant challenges both of the trial court's findings.
Analysis
The Constitution protects "[t]he fundamental liberty interest of natural parents in the care, custody, and management" of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Parental rights, however, are not absolute, and courts have recognized it is essential that the emotional and physical interests of a child not be sacrificed merely to preserve the parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The Due Process Clause of the United States Constitution and section 161.001 of the Texas Family Code require application of the heightened standard of clear and convincing evidence in cases involving involuntary termination of parental rights. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and convincing evidence 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. TEX. FAM. CODE ANN. § 101.007 (West 2014); In re C.H., 89 S.W.3d at 25-26.
The Texas Family Code permits a trial court to terminate parental rights if the Department proves by clear and convincing evidence that the parent committed an action prohibited under section 161.001(b)(1) and termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001(b)(2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Only one predicate finding under section 161.001(b)(1) is necessary to support an order of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.). Thus, a termination order may be affirmed if it is supported by legally and factually sufficient evidence of any statutory ground on which the trial court relied for termination, and the best interest finding. In re E.A.G., 373 S.W.3d 129, 141 (Tex. App.—San Antonio 2012, pet. denied).
Under the legal sufficiency analysis, we examine all of the evidence in the light most favorable to the challenged finding, assuming the "factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." In re J.F.C., 96 S.W.3d at 266. We disregard all contrary evidence the factfinder could have reasonably disbelieved or found incredible. Id. However, we take into account undisputed facts that do not support the finding, so as not to "skew the analysis of whether there is clear and convincing evidence." Id. If the record presents credibility issues, we must defer to the factfinder's determinations provided they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
Evaluation of the factual sufficiency of evidence supporting termination of parental rights requires "an exacting review of the entire record." In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In a factual sufficiency review, we must give due consideration to the evidence the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. We determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. In doing so we consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. In re J.F.C., 96 S.W.3d at 266.
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). But prompt and permanent placement of a child in a safe environment is also presumed to be in the child's best interest. TEX. FAM. CODE ANN. § 263.307(a) (West 2008). The best interest analysis evaluates the best interest of the child, not that of the parent. In the Interest of A.C.B., 198 S.W.3d 294, 298 (Tex. App.—Amarillo 2006, no pet.). The following factors are among those the court may consider in determining the best interest of a child: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interests of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72.
Section 161.001(b)(1)(Q) permits termination if the parent "knowingly engaged in criminal conduct that resulted in the parent's (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition." TEX. FAM. CODE ANN. § 161.001(b)(1)(Q); In re A.V., 113 S.W.3d at 358 (quoting former version of subsection); see In re H.R.M., 209 S.W.3d 105 (Tex. 2006) (also addressing sufficiency of evidence supporting subsection Q finding). Encompassed within the meaning of "care" of a child is the provision of financial, emotional and physical care of the child. In the Interest of D.R.L.M., 84 S.W.3d 281, 293 (Tex. App.—Fort Worth 2002, pet. denied), citing In re A.R.R., 61 S.W.3d 691, 701(Tex. App.—Fort Worth 2001, pet. denied). Therefore, "if the parent is convicted and sentenced to serve at least two years and will be unable to provide for his or her child during that time, the State may use subsection Q to ensure that the child will not be neglected." In re A.V., 113 S.W.3d at 360.
Once the Department has established the parent's knowing criminal conduct resulting in his incarceration for more than two years, the burden shifts to the parent to produce some evidence as to how he will arrange care for the child during that period. In re G.C., No. 01-12-00935-CV, 2013 Tex. App. LEXIS 2115, at *14-15 (Tex. App.—Houston [1st Dist.] Mar. 5, 2013, pet. denied) (mem. op.) (citing Hampton v. Tex. Dep't of Protective & Regulatory Servs., 138 S.W.3d 564, 567 (Tex. App.—El Paso 2004, no pet.); In re E.S.S., 131 S.W.3d 632, 639 (Tex. App.—Fort Worth 2004, no pet.); In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied)). When deciding whether an incarcerated parent is unable to care for a child, we may consider factors such as the availability of financial and emotional support from the incarcerated parent. In re G.C., 2013 Tex. App. LEXIS 2115, at *15, citing In re B.M.R., 84 S.W.3d 814, 818 (Tex. App.—Houston [1st Dist.] 2002, no pet.). When the parent meets his burden of production, the Department then has the burden of persuasion that the parent's arrangement would not satisfy the parent's duty to the child. In re G.C., 2013 Tex. App. LEXIS 2115, at *15, citing In re E.S.S., 131 S.W.3d at 639-40; In re Caballero, 53 S.W.3d at 396. The Department is required to investigate a proposed placement to determine if the placement would be in the child's best interest. In re G.C., 2013 Tex. App. LEXIS 2115, at *16.
L.G.'s primary argument asserts the trial court erred in finding sufficient evidence to support the (Q) ground because he provided evidence to show he made arrangements to have A.O. placed with his sister. Accordingly, it was then the burden of the Department to show care of A.O. by L.G.'s sister "would not satisfy" L.G.'s parental duties. In re Caballero, 53 S.W.3d at 396. He contends the Department failed to meet its burden.
His mother also sought placement of A.O. The Department conducted a home study but did not approve it.
We disagree with L.G.'s contentions. We first note the evidence on which the trial court relied for its subsection Q finding included: (1) L.G. had been in prison since November 2014; (2) he was convicted of offenses involving assaultive behavior and drug use; (3) his next parole review hearing is to be held in March 2017 but he had once been denied parole; (4) his release date is sometime in 2018, well past the two-year requirement under subsection Q; (5) he has not provided care to A.O.; and (6) the Department denied placement with L.G.'s sister after it conducted a home study.
L.G. was convicted of domestic assault involving a previous girlfriend. The girlfriend's children were removed from the home as part of the Department's investigation into those allegations. L.G. was also convicted for other offenses involving assaultive behavior, including one in which he threatened the victim with a baseball bat and one involving assault against a public servant.
The final hearing was continued to allow time for completion of the home study.
Because L.G. did not appear, the evidence of L.G.'s arrangements for provision of A.O.'s physical, emotional and financial needs while he was incarcerated came primarily from the testimony of the Department caseworker, L.G.'s mother, and L.G.'s sister.
L.G.'s sister testified she and the father of her children had been together for several years, though not married, had three children together, were employed and had lived in the same home for an extended period of time. During her testimony, the sister agreed with counsel that she did "not want to lose [her] niece" and was "all for whatever is good for [A.O.]." The caseworker acknowledged the "Department's policy is typically that a child would be placed with a relative." L.G.'s mother testified that L.G.'s sister is interested in adopting A.O. "[i]f it comes down to it . . . ."
The caseworker testified that while the home study conducted in reference to the father's sister was "approved with concerns," the Department ultimately denied placement of A.O. in that home. The caseworker indicated this denial was predicated on concerns the family would not be "protective" of A.O. Those concerns were based largely on the family's attitude regarding the seriousness of L.G.'s criminal and CPS history. From our review of the testimony the trial court heard, we conclude the court reasonably could have agreed with the Department's concerns.
The home study regarding L.G.'s sister's home was in evidence. It contains positive information concerning a possible placement of A.O. with L.G.'s sister, but describes also the reasons for the Department's denial of the placement. L.G.'s mother and sister had visited with A.O., but had essentially no relationship with the child. In the Interest of R.N.W., No. 01-13-00036-CV, 2013 Tex. App. LEXIS 8249, at *11-12 (Tex. App.—Houston [1st Dist.] July 5, 2013, no pet.) (mem. op.) (in considering potential placement, the trial court may consider evidence other than the results of a home study, including the relationship between the child and the proposed placement). The sister's partner did not testify. For the reasons the Department cited in its denial of the placement, and for these additional reasons, the trial court could have formed a firm belief that care of A.O. by L.G.'s sister would not satisfy L.G.'s parental duties. See, e.g., id. (collecting and discussing cases).
In In re N.R.T., 338 S.W.3d 667, 674-75 (Tex. App.—Amarillo 2011, no pet.), this court noted, "[t]he trial court's implicit acceptance of the reasons supporting the Department's rejection of each of the suggested placements provided a basis for a firm conviction that no family surrogate was available . . . ." We find the same to be true here. Although the evidence L.G. lacked the ability to care for the child through his sister must be seen as disputed, a reasonable fact finder could have resolved the dispute in favor of its finding. And, considering the entire record and the proper role of the fact finder, the evidence contrary to the finding is not so significant as to preclude the trial court from reasonably forming a firm conviction that L.G., individually or through his sister, was unable during his incarceration to care for A.O. See also In re L.M.D.M., No. 04-14-00739-CV, 2015 Tex. App. LEXIS 2279, *4 (Tex. App.—San Antonio Mar. 11, 2015, pet. denied) (mem. op.) (trial court may find parent's arrangement fails to satisfy the parent's duty to the child if the Department's home study concludes the arrangement is not a suitable placement for the child).
L.G. also argues the evidence supporting the ground for termination under subsection Q was insufficient for another reason. He argues he only recently learned he was the father of A.O. and thus had no knowledge he was the father prior to his incarceration. He committed the criminal act for which he was incarcerated almost four years before A.O. was conceived. We disagree that circumstance renders the evidence insufficient. Subsection Q does not speak to the relationship between the time of conception of the child and the time of occurrence of the criminal conduct. In re J.M.G., No. 07-16-00202-CV, 2016 Tex. App. LEXIS 11729, at *7 (Tex. App.—Amarillo Oct. 27, 2016, no pet.) (mem. op.). The Supreme Court of Texas observed in In re A.V., also addressing subsection Q, that the subsection "focuses on the parent's future imprisonment and inability to care for the child, not the criminal conduct that the parent committed in the past." 113 S.W.3d at 360.
The evidence was sufficient to permit the trial court to find by clear and convincing evidence L.G. knowingly engaged in criminal conduct that resulted in his conviction of an offense for which he was imprisoned and unable to care for A.O. for not less than two years from the date of filing the petition. See TEX. FAM. CODE ANN. § 161.001(b)(1)(Q). We overrule L.G.'s second issue. Best Interest
At the time of the final hearing, A.O. was seventeen months old. When a child is too young to express her desires, the factfinder may consider that the child has bonded with the foster family, is well cared for by them, and has spent minimal time with a parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The caseworker testified A.O. was placed with her foster parents when she was four months old. With them, she was "doing wonderful. She's thriving, and she's very well taken care of." The caseworker said she had no concerns "whatsoever" about A.O.'s care in her foster home. The caseworker testified A.O.'s mother had relinquished her parental rights to A.O. in hopes the foster family would adopt A.O. because "they are the only family she's ever known. She's been with them from the beginning."
Evidence showed the effect on A.O. of home visits with L.G.'s mother and sister. The caseworker testified A.O. was "upset," "agitated" and "very clingy" to her foster mother after the visits with L.G.'s family. A.O.'s foster mother testified after she picked A.O. up from the visits, "for the rest of the day, she's - she's not herself. She's - she's normally very happy, super happy. And she is clingy and sad, and she won't let me leave the room, and she won't let me put her down, and that goes all day, I mean, until bedtime. She's - she's upset and just very clingy." L.G.'s mother admitted A.O. "doesn't know me" and "it's scary for any child to meet a complete stranger and be comfortable with them." She admitted it has been difficult to create a bond with A.O. L.G.'s sister testified she desired to have A.O. placed with her and had an interest in adopting her. She also told the court she would "do whatever I was told to do to ensure that if I got [A.O.] I was able to keep her."
A.O.'s foster mother testified at the final hearing that A.O. had been placed with her and her husband since April 2015. She and her husband had been married for six years. She told the court she stays home with her three foster children and her husband works as a nurse at a local hospital. She testified she is attached to A.O., considers her to be her child, and A.O. calls her "momma" and her husband "daddy." She told the court they are able to provide for A.O. and are able to meet all of her needs. She testified, "We would love if she was ours forever" and indicated their strong desire to adopt A.O.
Because L.G. did not attend the hearing, the court heard nothing from him regarding his plans for A.O. The court heard only his mother's and sister's plans. L.G.'s mother plans for L.G. to live with her when he is released and both the mother and the sister testified that unless the court said otherwise, they will allow contact between L.G. and A.O. Considering L.G.'s history of assaultive behavior and drug use, resulting in incarceration at least five times between November 2011 and November 2014, the court could have considered that L.G.'s mother's plan for the child is problematical. During her testimony, L.G.'s mother downplayed L.G.'s criminal history, blamed police and made excuses for him.
The caseworker opined it was in A.O.'s best interest that L.G.'s parental rights be terminated and it was in A.O.'s best interest to remain in her foster home. The guardian ad litem voiced the same opinion.
While L.G. admits the foster parents appear to be capable of caring for A.O., he focuses on the fact the foster parents are not related to A.O. by consanguinity. He believes A.O.'s best interests are served by being placed with his family. He also argues nothing in the record shows he or his family presented a danger to A.O. The caseworker testified she did not observe any violent tendencies in either L.G.'s mother or his sister and that neither had criminal convictions.
Although there was evidence contrary to a finding termination was in the child's best interest, there was strong evidence in favor of that finding. We conclude any evidence that the court could not have credited in favor of its best interest finding was not so significant as to make its finding unreasonable. See In re J.F.C., 96 S.W.3d at 266 (standard for factual insufficiency). The evidence is legally and factually sufficient to support the trial court's finding that termination of L.G.'s parental rights was in the best interests of A.O. We overrule L.G.'s first issue.
Conclusion
Having resolved each of L.G.'s issues against him, we affirm the order of the trial court.
James T. Campbell
Justice