Opinion
04-21-00544-CV
06-08-2022
IN THE INTEREST OF B.C.S., a Child
From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2020-PA-01057 Honorable Linda A. Rodriguez, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice
MEMORANDUM OPINION
Irene Rios, Justice
Appellant Mother appeals the trial court's order terminating her parental rights to her child, B.C.S. ("the child"). Mother challenges the sufficiency of the evidence supporting certain statutory predicate grounds for termination as well as the sufficiency of the evidence supporting the trial court's finding that termination was in the child's best interest. We affirm the trial court's order.
To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the parents as "Mother" and "Father" and children by their initials. See Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8(b)(2). The trial court's order terminates both Mother's and Father's parental rights to the child, but only Mother appeals the trial court's order.
Background
Prior to the filing of this termination suit, Mother and Father had an extensive history with the Texas Department of Family and Protective Services ("the Department") dating back to 2016 concerning their other children. The Department initially became involved shortly after B.C.S.'s birth in May 2020 because of Mother's and Father's companion case in Medina County wherein the Department sought the termination of Mother's and Father's parental rights to their two other children. Ongoing domestic violence between Mother and Father, as well as their extensive Department history, served as the bases for both the Medina County case and B.C.S.'s case.
Based on these reasons and concern for the child's welfare, on May 27, 2020, the Department filed a petition for termination of parental rights and sought removal of the child. B.C.S. was placed in a foster home.
While the Department's case was open, the Department offered Mother services including parenting classes, domestic violence classes, and counseling. While Mother did make progress under the family-based services, she nevertheless repeatedly minimized the ongoing domestic violence between her and Father and denied contact with Father contrary to evidence suggesting otherwise.
On November 4, 2021, the trial court held a bench trial. Mother attended trial and testified. The trial court also heard testimony from caseworkers Christine Villarreal and Hilda Pernell. On November 18, 2021, the trial court signed an order terminating Mother's parental rights to B.C.S. Specifically, the trial court terminated Mother's parental rights based on four statutory predicate grounds in section 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (N), (O). The trial court also found that termination of Mother's parental rights was in the child's best interest. See id. § 161.001(b)(2). Mother appealed.
Father did not appeal the trial court's judgment.
Standard of Review
When reviewing the sufficiency of the evidence, we apply well-established standards of review. See Tex. Fam. Code §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (conducting a factual sufficiency review); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (conducting a legal sufficiency review).
"In reviewing the legal sufficiency of the evidence to support the termination of parental rights, we must '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.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *2 (Tex. App.-San Antonio Nov. 1, 2017, pet. denied) (mem. op.) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. "A corollary to this requirement is that a [reviewing] court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.
"In reviewing the factual sufficiency of the evidence to support the termination of parental rights, we 'must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.'" J.L.B., 2017 WL 4942855, at *2 (quoting J.F.C., 96 S.W.3d at 266). "A [reviewing court] should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266. "The [reviewing] court must hold the evidence to be factually insufficient if, in light of the entire record, the disputed evidence contrary to the judgment is so significant that a reasonable factfinder could not have resolved that disputed evidence in favor of the ultimate finding." In re M.T.C., No. 04-16-00548-CV, 2017 WL 603634, at *2 (Tex. App.-San Antonio Feb. 15, 2017, no pet.) (mem. op.).
Further, in a bench trial, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. HealthTronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 582 (Tex. App.-Austin 2012, no pet.). This is because "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.). We, therefore, defer to the trial court's judgment regarding credibility determinations. Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.-Austin 2014, no pet.).
Statutory Grounds for Termination
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department must prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) termination is in the best interest of the child. Tex. Fam. Code § 161.001(b). 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.
Only one predicate ground finding under section 161.001(b)(1) is necessary to support a termination judgment 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). Therefore, our analysis is usually complete if we conclude that the evidence is sufficient to support any single predicate ground. Because the findings under section 161.001(b)(1)(D) and (E) have consequences for termination of parental rights as to other children, termination on these grounds implicates significant due process concerns for Mother. Tex. Fam. Code § 161.001(b)(1)(D), (E), (M); In re N.G., 577 S.W.3d 230, 234 (Tex. 2019). Due process requires us to review the trial court's findings under both sections 161.001(b)(1)(D) and (E) of the Texas Family Code. See In re C.W., 586 S.W.3d 405, 407 (Tex. 2019) ("[W]hen a trial court makes a finding to terminate parental rights under section 161.001(b)(1)(D) or (E) and the parent challenges that finding on appeal, due process requires the appellate court to review that finding and detail its analysis.").
Here, the trial court found evidence establishing Mother "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child" and "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child[.]" See Tex. Fam. Code § 161.001(b)(1)(D), (E). While both subsections D and E focus on endangerment, they differ regarding the source and proof of endangerment. In re A.B.R., No. 04-19-00631-CV, 2020 WL 1159043, at *2 (Tex. App.-San Antonio Mar. 11, 2020, pet. denied) (mem. op.). Subsection D concerns the child's living environment, rather than the conduct of the parent, though parental conduct is certainly relevant to the child's environment. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.). Under subsection E, the cause of the endangerment must be the parent's conduct and must be the result of a conscious course of conduct rather than a single act or omission. Id.
Statutory Subsection D
The statutory ground for termination found in subsection D allows for termination of parental rights if the parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." Tex. Fam. Code § 161.001(b)(1)(D). The child's "environment" encompasses the suitability of the child's living conditions and the conduct of parents or others in the home. In re S.R., 452 S.W.3d 351, 360 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). "Inappropriate, abusive, or unlawful conduct by a parent or other persons who live in the child's home can create an environment that endangers the physical and emotional well-being of [the child] as required for termination under subsection D." Id. "'[A] parent need not know for certain that the child is in an endangering environment; awareness of such a potential is sufficient.'" In re R.S.-T., 522 S.W.3d 92, 109 (Tex. App.-San Antonio 2017, no pet.) (quoting In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.-Houston [14th Dist.] 2005, no pet.)). Subsection D permits termination based upon only a single act or omission. In re R.D., 955 S.W.2d 364, 367 (Tex. App.-San Antonio 1997, pet. denied).
Under Subsection D, the trial court examines "evidence related to the environment of the child[] to determine if the environment was the source of endangerment to the child[]'s physical or emotional well-being." J.T.G., 121 S.W.3d at 125. Parental conduct, however, is a factor that contributes to the child's environment. Id. The period relevant to a review of conduct and environment under statutory ground D is prior to the child's removal by the Department. In re J.R., 171 S.W.3d 558, 569 (Tex. App.-Houston [14th Dist.] 2005, no pet.).
Statutory Subsection E
Subsection E permits termination if the parent has "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child[.]" Tex. Fam. Code § 161.001(b)(1)(E). Under subsection E, endangerment encompasses "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment[.]" Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Instead, to endanger means to expose the child to loss or injury or to jeopardize his or her emotional or physical well-being. Id. The trial court must determine "whether evidence exists that the endangerment of the child's physical well-being was the direct result of [the parent'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). "'It is not necessary that the parent's conduct be directed at the child or that the child actually be injured; rather, a child is endangered when the environment or the parent's course of conduct creates a potential for danger which the parent is aware of but disregards.'" R.S.-T., 522 S.W.3d at 110 (quoting In re S.M.L., 171 S.W.3d at 477). "Courts may further consider parental conduct that did not occur in the child's presence, including conduct before the child's birth or after he was removed from a parent's care." A.B.R., 2020 WL 1159043, at *3. "[E]ndangering conduct is not limited to actions directed towards the child." In re J.OA., 283 S.W.3d 336, 345 (Tex. 2009).
Discussion
Because the same evidence relates to subsections D and E, we combine our analysis of these predicate grounds for termination. See A.B.R., 2020 WL 1159043, at *3 (citing J.T.G., 121 S.W.3d at 126).
Here, the overriding concerns plaguing the Department-dating back to 2016-involve the ongoing domestic violence between Mother and Father and Mother's failure to protect her children from a violent environment. Mother and Father had three children together before having B.C.S. In the Medina County case, the Department sought termination of Mother's and Father's parental rights to their two oldest children. The third child-born after the Department became involved in the Medina County case but before B.C.S.'s birth-was adopted after Mother voluntarily relinquished her parental rights.
Three years before the Medina County case, the Department began providing services to Mother. Initially, the two older children were removed by the Department but then reunited with Mother. However, within a couple of months, based on ongoing concerns of family violence between the parents and concerns for Father's substance abuse, the Department removed the children again.
Pernell, the caseworker involved in the Medina County case, explained to the court Mother minimized her domestic violence interactions with Father and denied her continuous relationship with him, claiming they were no longer together despite conceiving their third child and B.C.S. Pernell testified Mother failed to demonstrate a protective capacity for her children. The Department's second removal of the two older children in Medina County resulted in termination of Mother's and Father's parental rights. The trial court terminated Mother's parental rights under subsections D, E, and O.
Villarreal, the Department's caseworker involved in B.C.S.'s case, testified the Department removed B.C.S. when the child was a couple weeks old. She testified the removal occurred because of the companion case in Medina County and information related to Mother and Father's volatile relationship, including an allegation that Father assaulted Mother and kicked her in the stomach while pregnant with B.C.S. Despite these concerns, Mother continued her relationship with Father. Mother denied they lived together, claiming their relationship ended in May 2019, a year before B.C.S. was born.
Mother testified and admitted to having a "tumultuous relationship" with Father and estimated the police had been called around forty times for altercations between her and Father. However, Mother claimed to be the victim and that the abuse was emotional and verbal, not physical. She also testified no altercations occurred in 2021. The evidence before the trial court suggested otherwise.
The trial court admitted into evidence eleven police reports involving altercations between Mother and Father from December 30, 2020 through September 24, 2021. While several of the calls pertained to Father threatening Mother, many of them also involved Mother being the perpetrator. Although Mother denied vandalizing Father's truck, throwing a tire at Father's truck, preventing him from leaving a location, and confronting him at another person's residence, she did not deny the Department's requirement she attend a "perpetrator class" due to her interactions with Father. Furthermore, Mother was arrested in December 2020 for assaulting Father, a charge that remained pending at the time of trial. She was subsequently arrested for violating her bond conditions requiring no-contact with Father. Villarreal testified she found Mother to be the perpetrator more often than the victim. Villarreal expressed the Department's concern about the domestic violence, stating "the situations [had] actually escalated and [Mother's] behavior [had] become extremely dangerous to any child that's in her care."
Mother either denied these events occurred or minimized them, never implicating herself or Father in wrongdoing. Mother asserted because she participated in the services and completed all but one class-a domestic violence perpetrator class she complained about the Department recently adding-she was compliant; and thus B.C.S. should be returned to her. However, Villarreal stated it appeared Mother was "more concerned about her appearance in what people [thought] of her . . . mitigating the concerns going on in her - - her situation with [Father]." Villarreal also testified despite Mother's participation in domestic violence programs-three in this case and additional in prior Department cases-Mother failed to make behavioral changes and continued in a relationship with Father.
In sum, the Department's caseworkers, and even Mother to some extent, testified about Mother and Father's continuous domestic violence towards each other, which formed the basis of Mother's parental rights to her two older children being terminated just months before the trial involving B.C.S. See R.S.-T., 522 S.W.3d at 110 ("'Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment.'" (quoting In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.-Houston [14th Dist.] 2003, no pet.)). While the domestic violence was not directed at the children, the trial court could have formed a firm belief or conviction the exposure of the violence created an environment that endangered the children. See id. ("'It is not necessary that the parent's conduct be directed at the child or that the child actually be injured; rather, a child is endangered when the environment or the parent's course of conduct creates a potential for danger which the parent is aware of but disregards.'" (quoting S.M.L., 171 S.W.3d at 477)). The court may also consider evidence of the parent's conduct both before and after the child's birth, including conduct occurring after the child was removed from the parent's care. In re K.J.G., No. 04-19-00102-CV, 2019 WL 3937278, at *4 (Tex. App.-San Antonio Aug. 21, 2019, pet. denied) (mem. op.).
Therefore, viewing all the evidence in the light most favorable to the trial court's judgment, we conclude a reasonable trier of fact could have formed a firm belief or conviction Mother "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child" and "engaged in conduct . . . which endangers the physical or emotional well-being of the child." Tex. Fam. Code § 161.001(b)(1)(D), (E). Thus, the evidence is legally sufficient to support these findings. Further, after considering the entire record, including any disputed or contrary evidence, we conclude the evidence is factually sufficient to support the trial court's termination findings under subsections 161.001(b)(1)(D) and (E) of the Texas Family Code.
Having determined the evidence is legally and factually sufficient to support the trial court's findings on these statutory grounds, we need not consider whether the evidence would support termination under subsections (N) and (O). See A.V., 113 S.W.3d at 362.
Best Interest of the Child
When considering the best interest of the child, we recognize the existence of a strong presumption that the child's best interest is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, we also presume that prompt and permanent placement of the child in a safe environment is in his best interest. Tex. Fam. Code § 263.307(a).
In determining whether a parent is willing and able to provide the child with a safe environment, we consider the factors set forth in section 263.307(b) of the Texas Family Code. See id. § 263.307(b). We also consider the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). "The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." Id. In analyzing these factors, we must focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dept. of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ).
These factors include: (1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the department; (5) whether the child is fearful of living in or returning to the child's home; (6) the results of psychiatric, psychological, or developmental evaluations of the child [or] the child's parents . . .; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; . . . (10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time . . . . See Tex. Fam. Code § 263.307(b).
These factors include: (1) the child's desires; (2) the child's present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child's best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).
Evidence that proves one or more statutory ground for termination may also constitute evidence illustrating that termination is in the child's best interest. C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). "A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." See In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). "A trier of fact may measure a parent's future conduct by his past conduct and determine whether termination of parental rights is in the child's best interest." Id.
Domestic violence may be considered in analyzing the best interest of the child. See Tex. Fam. Code § 263.307(b)(7) (specifying "whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home" as a factor to review in trial court's best-interest finding); J.O.A., 283 S.W.3d at 345 ("[E]ndangering conduct is not limited to actions directed towards the child."). Both parents have engaged in domestic violence towards each other. Mother stands charged of assaulting Father and failing to adhere to a no-contact bond condition concerning the charge. From the inception of Mother's involvement with the Department regarding multiple children, she denies or minimizes the violence between her and Father.
Mother testified she has bonded with B.C.S. during her once-weekly, four-hour visits. However, Mother missed several visits and was consistently late to those she did attend, claiming those absences and late arrivals were because of work, sickness, or car issues. Villarreal specified Mother had only exercised about twenty-five percent of her visitations in the three months before trial. Villarreal denied Mother and B.C.S. had bonded. Therefore, the trial court reasonably could believe the evidence does not support Mother took steps to consistently visit and form a bond with B.C.S.
Additionally, B.C.S. was a newborn at the time of removal and eighteen months old at the time of trial. When, as here, a child is too young to express his desires, the trial court may consider whether the child has bonded with current caregivers, is well cared for by them, and has spent minimal time with the parent. See In re D.A.B., No. 04-19-00629-CV, 2020 WL 1036433, at *7 (Tex. App.-San Antonio Mar. 4, 2020, no pet.) (mem. op.). B.C.S. is doing well and has bonded with his caregivers, who have expressed a desire to adopt B.C.S. See In re A.M.M., 04-19-00806-CV, 2020 WL 2139308, at *4 (Tex. App.-San Antonio May 6, 2020, pet. denied) (mem. op.) (indicating evidence the children are in a "stable and nurturing environment" supported the trial court's best-interest determination).
"As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child." In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied) (citing In re S.D., 980 S.W.2d 758, 763 (Tex. App.- San Antonio 1998, pet. denied)). While Mother claimed to currently live with her aunt, Villarreal testified the Department unsuccessfully attempted to visit the address on three unannounced occasions. Villarreal also explained the Department encountered difficulties in communicating with Mother because in addition to the Department being unable to locate Mother's address, Mother would not answer the Department's phone calls, responding only by text messages. According to Villarreal, Mother's lack of engagement in visitation, lack of engagement in services, continued domestic violence behavior, and combative behavior with the Department contributed to Mother's inability to provide a safe and stable home for B.C.S.
Thus, the trial court reasonably could have formed a firm belief or conviction that the child's present and future emotional and physical needs were best served by termination. See J.L.B., 2017 WL 4942855, at *7 ("A child's need for permanence is a paramount consideration for the child's present and future physical and emotional needs."). Contrary to Mother's argument, the trial court could have also formed a firm belief or conviction that reunification-or naming Mother possessory conservator rather than terminating parental rights-would present future emotional and physical danger to B.C.S. See id. ("A factfinder may infer from a parent's past inability or unwillingness to meet a child's physical and emotional needs an inability or unwillingness to meet a child's needs in the future.").
Having reviewed the record and considered all the evidence in the appropriate light for each standard of review, we conclude the trial court reasonably could have formed a firm belief or conviction that termination of Mother's parental rights is in the child's best interest. See Tex. Fam. Code § 161.001(b)(2); H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d at 573; see also generally In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (recognizing an appellate court need not detail the evidence if affirming a termination judgment). Accordingly, we hold the evidence is legally and factually sufficient to support the trial court's best-interest finding.
Conclusion
Based on the foregoing, we affirm the trial court's order terminating Mother's parental rights.