Opinion
02-23-00160-CV
07-27-2023
In the Interest of A.S., a Child
On Appeal from the 89th District Court Wichita County, Texas Trial Court No. DC89-CP2022-0351
Before Birdwell, Bassel, and Walker, JJ.
MEMORANDUM OPINION
Brian Walker Justice
I. INTRODUCTION
The trial court terminated Appellant Mother's parental rights to her one-year-old child A.S. after a jury trial. In a single issue, Mother complains that the evidence is legally and factually insufficient to support the jury's best-interest finding. Because the evidence is legally sufficient to support the best-interest finding and because Mother failed to preserve her factual-sufficiency complaint, we affirm.
II. BACKGROUND
When A.S. was born in February 2022, Mother admitted to April Kaufman, a Department of Family and Protective Services (DFPS) investigator, that she had used methamphetamine during her pregnancy. In her conversation with Kaufman, Mother did not deny that A.S. had tested positive for methamphetamine at birth.
Mother also told Kaufman that A.S.'s father was incarcerated on drug charges and had been given a fifteen-year sentence. Father signed a voluntary affidavit of relinquishment of his parental rights to A.S. See Tex. Fam. Code Ann. § 161.001(b)(1)(K).
A.S. remained on a feeding tube in the hospital for ten days after the hospital discharged Mother. Mother was arrested for two counts of possession of a controlled substance the day after her hospital discharge, and she remained incarcerated when A.S. was released from the hospital into DFPS's custody. A.S. was eventually placed out of state with his paternal aunt.
Although Mother asked for A.S. to be placed with her mother, Mother's mother had a child-protective-services history that prevented the placement even after a closer review via a home study.
Mother was given a family service plan by her first caseworker. The plan, designed to help Mother acquire the skills she needed to achieve A.S.'s return to her and to ameliorate the conditions that had led to A.S.'s removal from her, required Mother to attend parenting classes, individual counseling, and weekly visits with A.S.; to submit to a psychological evaluation, random drug tests, and a substance-abuse assessment and to comply with any related treatment recommendations; and to obtain stable and legal income and safe and appropriate housing. The trial court incorporated the service plan into its orders in the case and ordered Mother to provide her current address and phone number to DFPS and to attend all court hearings, meetings, and case-related activities. Mother signed the service plan on April 8, 2022.
Brittany Hanks, a permanency case manager for 2Ingage, began working with Mother in May 2022. During the case, Mother completed the drug assessment and attended some Narcotics Anonymous meetings but otherwise did not comply with her service plan's requirements. Mother took four out of eleven requested drug tests, even though she knew that testing was a condition for visitation with A.S. Mother visited A.S. only three times during the case. Mother's last drug-use admission to Hanks was in December 2022, a little over a month before trial.
DFPS contracts with 2INgage to provide case management services. See In re J.A., No. 07-22-00350-CV, 2023 WL 3305176, at *2 n.5 (Tex. App.-Amarillo May 8, 2023, pet. filed) (mem. op.) (explaining that 2INgage is "a state contractor providing case management and family services designed to achieve permanency").
DFPS's brief states that Mother attended six visits with A.S., but Hanks testified that Mother attended only three of the six visits she was eligible to attend after taking a drug test.
Text messages exchanged between Mother and Hanks were admitted into evidence and illustrate how Mother delayed responding to Hanks and ignored Hanks's requests with which Mother did not want to comply, such as drug-test and home-visit requests. Mother delayed for a week before responding to Hanks's first text message.
Occasionally, however, Mother would send texts to Hanks to complain about the case and how she felt she was being mistreated. In response to Mother's June 9 complaint, Hanks reminded Mother that she had "sent numerous texts and called and they've gone unanswered." Hanks pointed out to Mother that she had asked Mother for a meeting and for drug screenings but had received no response, and she told Mother that she was "open and happy to assist [her] but communication ha[d] to go back and forth." Mother replied that she wanted to see A.S. but was concerned about having an open warrant.
Hanks responded that she understood that Mother had a warrant but that she was happy to go to Mother. Mother then complained, "2Ingage has been a horrible experience all the way around[.] CPS WASN'T LIKE THIS." Hanks replied that she understood Mother's frustration but could not do much about it if Mother would not meet with her. In Mother's June 22 text exchange with Hanks, Mother again mentioned her open warrant and her fear of being arrested if she met with Hanks. Hanks reassured Mother that she had no intention of getting Mother arrested and that her job was to work with Mother, not against her.
Child Protective Services (CPS) performed DFPS's conservatorship case work before 2INgage. See Tex. Fam. Code Ann. §§ 264.151-.172 (describing and providing requirements for DFPS oversight of private community-based-care system for the State of Texas).
Mother requested updates and information about A.S. on June 15, June 22, August 10, August 22, September 8, September 15, and October 17. After Hanks replied to Mother's June 22 text with photos and information about A.S., she did not receive another text message from Mother until July 21, when Mother asserted that the case was traumatizing her, stating,
2Ingage has been a horrible experience .... I had a head up from the jump that 2INgage was not so good. And sure enough it's been so traumatizing for me[;] . . . instead of trying to help reunite with family[,] they work against reuniting. I have all my messages from the very jump with the [CPS] investigator. I know we are being treated very poorly [and there is a] lack of communication[,] one person saying this[,] another saying that.... [W]ho can I talk [to] . . . like the head boss of 2INgage because something has [to] be done or y[']all need to be investigated thoroughly.... I feel as if it's almost impossible.
Hanks replied by telling Mother that she had consistently tried to call, text, and meet with Mother each month, frequently with no response from Mother, and she provided to Mother her supervisor's contact information.
Mother responded to Hanks's text with an all-capital-letters diatribe about 2INgage, stating,
CPS WAS WAY BETTER AND MORE FOR REUNITING FAMILY. THIS IS Y[']ALLS FIRST YEAR HERE[,] AND I FEEL LIKE WE[']RE THE [GUINEA PIGS]. I HAVE MANY CONCERNS TO BRING TO THE JUDGE[:] THE FACT THAT THE JUDGE ORDERED ME TO HAVE VISITS WITH MY BA[BY] REGARDLESS OF ME PEEING DIRTY. I GET TOLD ONE THING THEN ANOTHER SO I[']M NEV[E]R CLEAR ON WHAT TO BELIEVE. I J[U]ST WISH [YOU] GUYS COULD SEE HOW TRAUMATIZED I[']VE BEEN.... I DO WANT HELP[;] I DO CARE FOR THE BABY.... THERE'S BEEN SO MANY PEOPLE HANDLING OUR CASE THAT [I DON'T KNOW] WHO TO TALK [TO].... I KNOW ME [S]MOKING METH WAS BAD[;] YES[,] I DO AGREE. BUT PL[EASE] D[ON'T] TAKE MY SWEET [C]HILD AWAY FROM ME.... PL[EASE] KEEP HIM WITH MY MOM AND I[']LL GIVE MY MOM GUARDIANSHIP.
Hanks testified that at that point-July 21-there had been only three people in the case with whom Mother had been involved: Kaufman, whose involvement had ended on March 8; Mother's first caseworker, whose involvement ended around May 4, when Hanks received the case; and Hanks.
Mother reached out to Hanks on August 1 to ask for another copy of the service plan and to ask for a referral to rehab. On August 10 and August 19, in response to Hanks's requests for in-person meetings, Mother asked to meet using Zoom. Hanks explained to Mother more than once that Mother had to meet with her "in person every month" because she could not assess the safety and stability of Mother's home if she could not see it.
Hanks testified that she gave Mother a copy of the service plan at least three times in addition to the copy that Mother was given when she signed the service plan in April 2022.
On August 17, two days before a scheduled visit with A.S., Mother asked Hanks for the phone number for the parenting classes she had been ordered to attend at the case's beginning. Hanks replied at 7:31 a.m. on August 19 to remind Mother about their 8:15 a.m. meeting before Mother's 9 a.m. visit with A.S. and told her they would talk about the services then. At 9:35 a.m. that day, Mother sent a text requesting to reschedule the meeting and the visit with A.S.
On August 24, Mother was present with her counsel at the permanency hearing when the trial court set the February 6, 2023 trial date, and she signed the order setting the date as approved as to form and substance. That same day, Hanks sent a text to Mother to let her know that a visit had been scheduled for her with A.S. for September 2.
On August 31, Hanks sent a text to Mother to see if she had gone to her first service appointments, but she received no response from Mother. Mother missed her 9 a.m. visit with A.S. on September 9 and did not respond to Hanks's text message until 1:57 p.m. to tell Hanks that she was sick. When Mother also missed her September 13 visit, Hanks told Mother that she was being taken off the visitation schedule and could be put back on after an in-person meeting at her residence.
At some point between mid-August and mid-October, Mother went to jail. Mother told Hanks that the only time she was "clean," i.e., not using drugs, was during her jail stay. At the end of November, Hanks tried to help Mother arrange for inpatient drug treatment that would address both her DFPS case and her probation, and Mother asked what else was left on her service plan "so [she] could go about checking things off [her] list before going into rehab." Hanks reminded Mother that she needed to complete counseling, parenting classes, and a psychological assessment and to follow any recommendations from that assessment, as well as showing employment and housing.
Hanks testified that the services in the service plan were not just to check a box but rather to show a change in behavior for the child's safety.
On December 12, Mother sent Hanks a text to ask how many Narcotics Anonymous meetings and parenting classes she had to complete. Hanks replied that the Narcotics Anonymous meetings were "a constant" that she should be attending on an ongoing basis and that the parenting class was a six-week program.
On January 12, 2023, Mother sent Hanks a text to ask about when her Christmas present for A.S. could be delivered and when her older child and A.S. could have a visit. She expressed concern that her sons were being punished by being kept from each other, and she stated, "If I did not care about my child[,] I wouldn't be asking for them to have visits." Mother added,
The jury was not presented with information about Mother's older son.
And I don't want to sign my rights or have my rights terminated[.] I feel there's a way we can avoid that. There has to be[.] I still have legal custody of my oldest son and here I am being emotionally distressed and traumatized from dealing with cps[.] [O]ne thing is said[;] th[e]n it changes. You have been firm and quick to encourage me to sign my rights and time and time again I say that's not what I want. Rather[,] y'all are forcing it.
Hanks replied that Mother had not been in contact with her for a month and that Mother needed to contact her attorney, who had also been trying to reach her.
Mother responded the next day with a rant about cancelling visits being Hanks's "favorite thing," and she complained about Hanks's customer service and threatened to have the case investigated. Mother stated, "Y[']all [are] working [to] keep family apart[,] not to keep together[.] [Y']all have been a horrible experience [to] me and my family[.] [CPS] is way[,] way better[.] [Y']all say to reunite[,] but that's a cover up."
On Friday, January 20, Mother asked Hanks to renew her psychological evaluation's payment authorization. Hanks replied the following Monday to tell Mother that everything had been submitted for all of Mother's services but noted that it was "likely they need an updated authorization," which she could send once Mother made the appointment.
Hanks testified that she had contacted or attempted to contact Mother at least three times a month at a minimum and that Mother had never indicated to her why she was not working on her services. Hanks was unaware of whether Mother had taken any legitimate steps to become drug-free.
Hanks testified that A.S. was excelling in his placement with his paternal aunt and her family, who wanted to adopt him, and that A.S. was well-loved there. She described one-year-old A.S. as very bonded with his paternal aunt. Hanks opined that Mother's parental rights should be terminated and noted that if Mother's rights were not terminated, then A.S. could potentially remain a foster child until he turned eighteen. Hanks stated that termination of Mother's parental rights, followed by adoption by his paternal aunt, would be in A.S.'s best interest "[b]ecause every child deserves permanency."
Samantha Stephens, A.S.'s court-appointed special advocate, likewise testified that Mother's parental rights to A.S. should be terminated, listing Mother's failure to comply with the court's orders and with requested drug screens, failure to stay in contact with anyone in the case, and failure to visit A.S. during the case. Stephens did not know whether Mother had safe and stable housing or employment because Mother did not tell her despite Stephens's having made eleven attempts to contact her.
Mother did not testify and did not attend most of the trial. However, her counsel moved for a directed verdict, which preserved Mother's legal-sufficiency complaint for appeal. See In re A.H., No. 02-22-00019-CV, 2022 WL 1573408, at *3 (Tex. App.-Fort Worth May 19, 2022, pet. denied) (mem. op.) (noting that a parent must seek a directed verdict or use another procedural vehicle to preserve her legal-sufficiency challenge to the jury's best-interest finding); see also T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220-21 (Tex. 1992) (listing preservation methods for no-evidence and matter-of-law issues in jury trials).
Before voir dire concluded, DFPS sent someone to pick up Mother and bring her to court, causing a brief delay. After a recess was called during the first witness's testimony, Mother did not return to the trial despite efforts to locate her. On the second day of trial, when Mother again did not appear in the courtroom, the trial court noted, "Well, she knows how to get here. She's been in court part of this proceeding." DFPS's counsel noted during a hearing on Mother's counsel's second motion for a continuance that Mother had been absent for most of the case, "popping in only when she chooses, so a continuance does not guarantee . . . her appearance at any given time." Mother does not appeal the denial of her motions for continuance filed by her counsel after she failed to appear more than once during the trial.
The jury unanimously found that Mother had endangered A.S. through her conduct, that she had constructively abandoned A.S., that she had failed to comply with the court's orders that specifically established the actions necessary for her to obtain A.S.'s return to her, and that termination of Mother's parental rights would be in A.S.'s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (N), (O), (2). The trial court terminated Mother's parental rights based on the jury's findings. Mother did not file a motion for new trial and thus failed to preserve her factual-sufficiency complaint for appeal. See In re J.S., No. 02-18-00164-CV, 2018 WL 5833438, at *2 (Tex. App.-Fort Worth Nov. 8, 2018, pet. denied) (mem. op.) ("Because a motion for new trial is a prerequisite to a factual sufficiency challenge in a jury trial, Mother . . . ha[s] forfeited [her] complaint[] that the evidence is factually insufficient to support the best-interest finding[.]"); see also Tex.R.Civ.P. 324(b)(2)-(3); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
For a trial court to terminate a parent-child relationship, DFPS must prove by clear and convincing evidence that the parent's actions satisfy one ground listed in Family Code Section 161.001(b)(1) and that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b); In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020). Mother does not appeal the jury's Section 161.001(b)(1) findings. Accordingly, because she has not presented an issue as to these findings, we do not reach them. Cf. In re N.G., 577 S.W.3d 230, 235, 237 (Tex. 2019) (requiring review of endangerment findings when they are challenged on appeal).
III. BEST INTEREST
Mother summarizes the preserved portion of her complaint as follows: "The caseworker believe[d] termination [was] in the child's best interest because he would be best taken care of with his paternal aunt and because the mother did no services and was still using methamphetamine as of December 2022." She complains that this was not enough evidence to overcome the presumption in favor of parental rights. DFPS replies that the evidence is sufficient to support the best-interest finding based on Mother's drug use, failure to comply with her service plan, failure to maintain consistent contact with DFPS, and failure to visit A.S. in comparison to the testimony about A.S.'s bond with his paternal aunt, who wanted to adopt him.
To determine whether the evidence is legally sufficient in parental-termination cases, we look at all the evidence in the light most favorable to the challenged finding-here, the jury's best-interest finding-to determine whether a reasonable factfinder could form a firm belief or conviction that the finding is true. Z.N., 602 S.W.3d at 545. The factfinder may draw inferences, but they must be reasonable and logical. Id. We assume that the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved, and we consider undisputed evidence even if it is contrary to the finding. Id.; In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). That is, we consider evidence favorable to the finding if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The factfinder is the sole judge of the witnesses' credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
Although we generally presume 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), the best-interest analysis is child-centered, focusing on the child's well-being, safety, and development, In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In determining whether evidence is sufficient to support a best-interest finding, we review the entire record. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Evidence probative of a child's best interest may be the same evidence that is probative of a Subsection (b)(1) ground. Id. at 249; C.H., 89 S.W.3d at 28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the evidence in light of nonexclusive factors that the factfinder may apply in determining the child's best interest:
(A) the [child's] desires . . .;
(B) the [child's] emotional and physical needs[,] . . . 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 [child's] best interest . . .;
(F) the plans for the child by these individuals or[, if applicable,] by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the [parent's] acts or omissions . . . indicat[ing] that the existing parent-child relationship is not a proper one; and
(I) any excuse for the [parent's] acts or omissions.Holey v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (citations omitted); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, "we consider, among other evidence, the Holley factors" (footnote omitted)); In re E. N.C. , 384 S.W.3d 796, 807 (Tex. 2012). These factors are not exhaustive, and some listed factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient to support a finding that termination is in the child's best interest. Id. On the other hand, the presence of scant evidence relevant to each factor will not support such a finding. Id. A factfinder may infer from past conduct endangering a child's well-being that similar conduct will recur if the child is returned to the parent. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.-Fort Worth 2009, no pet.) (op. on reh'g).
The evidence shows that A.S. was bonded to and well-cared-for by his paternal aunt; that Mother did not visit A.S. more than three times during the case; that A.S. was born positive for methamphetamine, which Mother admitted to using during her pregnancy with him and which she continued to use during the case; that Mother complied with very little of her court-ordered service plan designed to provide her with the skills necessary to care for A.S.; and that Mother delayed in responding to her caseworker and failed to show that she had safe housing for A.S. despite repeated requests to visit her home. See Holley, 544 S.W.2d at 371-72; see also In re M.R., 243 S.W.3d 807, 821 (Tex. App.-Fort Worth 2007, no pet.) ("A parent's drug use, inability to provide a stable home, and failure to comply with a family service plan support a finding that termination is in the best interest of the child.").
Further, Mother opted not to testify (or to attend most of the trial), and no one presented any evidence to show that Mother could meet A.S.'s needs or that she had obtained stable housing or employment or to explain her acts or omissions before and during the case or her plans for A.S. See In re E.B., No. 02-22-00205-CV, 2022 WL 17172340, at *10 (Tex. App.-Fort Worth Nov. 23, 2022, no pet.) (mem. op.) (noting that parent did not explain why she did not appear for trial); see also Holley, 544 S.W.2d at 371-72 (stating that the factfinder may consider, among other things, the parental abilities of those seeking custody, their plans for the child, and the stability of the home or proposed placement). Instead, the record reflects that during the case, Mother avoided providing her caseworker or the court-appointed special advocate any information about her housing or employment. Mother had a year to show that she could make the changes necessary for A.S.'s return to her, but she failed to do so, and many of her texts demonstrated a focus on her desires and complaints instead of on A.S. and his well-being.
The party seeking termination of parental rights-here, DFPS-has the burden of proof. In re J.W., 645 S.W.3d 726, 740 (Tex. 2022).
Having reviewed the evidence in the light most favorable to the best-interest finding, we conclude that the jury reasonably could have formed a firm belief or conviction that termination of Mother's parental rights was in A.S.'s best interest based on the testimony of Kaufman, Hanks, and Stephens, as well as Mother's text messages exchanged with Hanks during the case. See Z.N., 602 S.W.3d at 545; J.O.A., 283 S.W.3d at 346. Accordingly, because the evidence is legally sufficient to support the jury's best-interest finding, we overrule the preserved portion of Mother's sole issue.
IV. CONCLUSION
Having overruled the preserved portion of Mother's sole issue, we affirm the trial court's judgment.