Opinion
04-22-00416-CV
01-04-2023
IN THE INTEREST OF B.R.T., A.C.K., and C.A.M., Children
From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2020-PA-02100 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Luz Elena D. Chapa, Justice, Beth Watkins, Justice
MEMORANDUM OPINION
Luz Elena D. Chapa, Justice
Appellant G.R. appeals the trial court's order terminating her parental rights to her children, B.R.T., A.C.K., and C.A.M. G.R. contends the evidence is legally and factually insufficient to support the trial court's predicate grounds and best interest finding. She also challenges the trial court's managing conservatorship findings. We affirm the trial court's order.
To protect the identity of the minor children in this appeal, we refer to the parent and children by their initials. See Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Background
When the Texas Department of Family and Protective Services became involved in the underlying case in April 2020, G.R. had two children, three-year-old B.R.T. and four-month-old A.C.K. At the time, G.R. was not in a relationship with either of the children's fathers, and she was living with her boyfriend A.M. The Department had received a referral alleging G.R. used drugs while caring for the children and exposed them to domestic violence between herself and A.M. During its investigation, G.R. and A.M. tested positive for methamphetamines and amphetamines, and G.R. made outcries regarding domestic violence. The Department continued to receive referrals and investigate the case, and by October 2020, it initiated emergency removal proceedings by filing a petition seeking temporary managing conservatorship of B.R.T. and A.C.K. and termination of G.R.'s parental rights.
The trial court signed an emergency removal order, named the Department temporary managing conservator, and granted G.R. temporary possessory conservatorship. The trial court then held the required full adversarial hearing and ordered G.R. to comply with all the provisions of the Department's service plan. The trial court's order contained an express admonishment stating failure to fully comply with any of the service plan requirements could result in termination of her parental rights.
In November 2020, G.R. gave birth to C.A.M., and the Department immediately removed C.A.M. from G.R.'s care when he was born and added C.A.M. to the termination proceeding. The Department continued to work with G.R., but the case ultimately proceeded to trial in March 2022. After hearing testimony from a Department caseworker, G.R., and the children's fathers, the trial court terminated G.R.'s parental rights pursuant to subsections 161.001(b)(1)(O) and (P) of the Texas Family Code. See Tex. Fam. Code § 161.001(b)(1)(O) (failure to comply with specific provisions of court order) and (P) (used controlled substance and continued to abuse substance after completing substance abuse treatment program). The trial court further found termination of G.R.'s parental rights was in the children's best interest. See id. § 161.001(b)(2). It also appointed A.C.K.'s father managing conservator of A.C.K. and the Department managing conservator of B.R.T. and C.A.M. G.R. now appeals and challenges the sufficiency of the evidence supporting the trial court's predicate grounds, best interest finding, and appointment of A.C.K.'s father and the Department as managing conservators.
Analysis
Standard of Review
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department must prove by clear and convincing evidence one of the predicate grounds enumerated in subsection (b)(1) and termination is in a child's best interest. See id. § 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. We employ this heightened standard to guard the constitutional interests termination implicates and judge whether a "factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.-San Antonio 2013, no pet.).
When reviewing the sufficiency of the evidence, we apply the well-established standards of review set by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). Under a legal sufficiency review, we "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." Id. at 266. We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and we do not disregard undisputed evidence even if it does not support the trial court's finding. Id. Under a factual sufficiency review, we "give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." 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." Id. Under these standards, "[t]he trial court is the sole judge of weight and the credibility of the evidence, including the testimony of the Department's witnesses." In re F.M., No. 04-16-00516-CV, 2017 WL 393610, at *4 (Tex. App.-San Antonio Jan. 30, 2017, no pet.) (mem. op.).
Subsection (O)
Subsection (O) provides the trial court may order termination of parental rights if it finds by clear and convincing evidence a parent has:
failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under [Family Code] Chapter 262 for the abuse or neglect of the child.Tex. Fam. Code § 161.001(b)(1)(O). The Department must therefore prove "(1) it has been the child's temporary or permanent managing conservator for at least nine months; (2) it took custody of the child as a result of a removal from the parent under Chapter 262 for abuse or neglect; (3) a court issued an order establishing the actions necessary for the parent to obtain the return of the child; and (4) the parent did not comply with the court order." In re Y.G., No. 01-22-00181-CV, 2022 WL 3362953, at *10 (Tex. App.-Houston [1st Dist.] Aug. 16, 2022, pet. denied) (mem. op.).
"Texas courts generally take a strict approach to subsection (O)'s application." In re K.V.C., No. 04-22-00150-CV, 2022 WL 3639511, at *3 (Tex. App.-San Antonio Aug. 24, 2022, pet. denied) (mem. op.); Y.G., 2022 WL 3362953, at *10. Substantial compliance with a court ordered service plan does not constitute compliance under subsection (O), and a parent's failure to complete one service plan requirement is sufficient to support termination under subsection (O). See, e.g., K.V.C., 2022 WL 3639511, at *3; In re J.M.T., 519 S.W.3d 258, 267 (Tex. App.-Houston [1st Dist.] 2017, pet. denied)). This court has further recognized subsection (O) does not quantify how many service plan requirements a parent must not complete for a trial court to terminate her parental rights or what degree of conduct constitutes failure to comply with a service plan. See K.V.C., 2022 WL 3639511, at *3. However, termination under subsection (O) is precluded if a parent proves by a preponderance of the evidence, she was unable to comply with specific provisions of a court-ordered service plan, but she made a good faith effort to comply and her failure to comply is not attributable to any fault of her own. Id. (citing Tex. Fam. Code § 161.001(d)).
Here, the record reflects the Department had reviewed the service plan requirements with G.R., and G.R. understood them. Specifically, the service plan required G.R. to complete a psychological evaluation and follow all the recommendations made from her assessment, complete parenting and domestic violence classes, engage in individual and family counseling, complete a drug dependency assessment, submit to random drug testing, demonstrate she could provide a safe and drug-free home for her children, and obtain and maintain stable employment.
According to the Department caseworker, G.R. had not complied with her service plan because she did not engage in couples counseling, which the court ordered in September 2021, or comply with random drug screening. The caseworker testified in October 2021, she had provided G.R. with a couples counseling referral, but G.R. did not initiate services. The caseworker also testified she reminded G.R. about the referral, but G.R. did not set up an appointment. Regarding G.R.'s failure to comply with random drug screening, the caseworker testified she referred G.R. for seventeen drug tests, but G.R. did not take any of them. The caseworker acknowledged in June 2021, G.R. had completed a drug treatment program and tested negative for drugs while participating in the program, but since completing the program, G.R. did not take any random drug tests the Department requested. The record reflects in January 2022, the trial court ordered G.R. to complete another drug test before a status hearing, and G.R. did not complete it.
The trial court also heard evidence indicating G.R. could not provide a safe and drug-free home for her children or obtain and maintain stable employment. The Department caseworker explained G.R. had told the Department A.M. abused her, and when the Department took G.R. to a battered women's shelter, G.R. left and returned to live with A.M., with whom she continues to live. The caseworker testified a week before trial, she and another caseworker visited the couple's apartment, and they could hear a domestic disturbance occurring inside the home. She testified she heard a female screaming and items being thrown, and when the police arrived, nobody answered the door. The caseworker also testified when she spoke to the apartment office, they informed her G.R. and A.M. owed $18,000 in past-due rent and were facing eviction. Finally, the trial court heard testimony G.R. did not obtain and maintain employment during the pendency of the case because she was pregnant with her fourth child.
G.R.'s fourth child was born in October 2021 and is not subject to this termination proceeding.
G.R. does not dispute the trial court ordered her to fully comply with the Department's service plan, nor does she contend she did not understand the importance of completing all the service plan requirements. Instead, she argues she "substantially completed the service plan," and she "was not afforded a reasonable opportunity to complete it." To support her argument, G.R. points out she completed her domestic violence classes, has been living in a two-bedroom apartment with A.M. throughout the case, has consistently visited her children, and completed individual and couples counseling with A.M. in March 2021. She also argues she explained to the trial court she could not reengage in couples therapy when ordered in September 2021 because of A.M.'s work schedule, and no incidents of domestic violence have occurred since they completed couples counseling in March 2021. However, the trial court could have reasonably concluded G.R. did not make a good faith effort to work with the Department, and it could have chosen not to believe G.R.'s testimony regarding whether domestic violence was still occurring. We have no choice but to defer to the trial court's credibility determinations. See F.M., 2017 WL 393610, at *4.
To the extent G.R. asserts she was not afforded a reasonable opportunity to complete her service plan because of missed drug tests, the evidence shows only one incident where G.R. was unable to take a drug test because the Department caseworker had not resubmitted the paperwork. At trial, G.R. testified she was unable to comply with the trial court's order to complete a drug test in January 2022 because the Department caseworker did not set up the test when she had a babysitter and failed to resubmit the required paperwork to the testing facility when she and A.M. could finally attend. However, G.R. admitted when the caseworker had originally emailed her about the drug test, she did not check her emails regularly. When she emailed the caseworker to reschedule, she received an automated out of office message because by then, the caseworker was on military leave. G.R. testified she decided to go to the drug testing facility, but the facility was unable to accommodate her because the paperwork had not been resubmitted. Besides this one incident, the Department produced evidence it accommodated G.R. when G.R. asked by rescheduling drug tests for G.R. at closer drug testing facilities and different dates; however, G.R. still did not take the newly scheduled tests because the times were inconvenient. G.R. also did not complete couples counseling because of A.M.'s work schedule. Based on this evidence, the trial court could have determined G.R. did not prove by a preponderance of the evidence her failure to comply with the service plan was not attributable to any fault of her own.
Accordingly, when viewing this evidence under the appropriate standards of review, the trial court could have formed a firm belief or conviction G.R. did not comply with all the terms of her court ordered service plan. The evidence shows G.R. understood her service plan requirements, and she concedes she partially completed it. However, "we also remain mindful that Texas courts, including this court, take a strict approach when evaluating subsection (O), and that substantial compliance with a service plan 'is not enough to avoid termination'" of G.R.'s parental rights under subsection (O). In re C.R., No. 04-20-00200-CV, 2020 WL 5646473, at *3 (Tex. App.-San Antonio Sept. 23, 2020, no pet.) (mem. op.) (quoting In re I.G., No. 04-15-00406-CV, 2015 WL 7566088, at *4 (Tex. App.-San Antonio Nov. 25, 2015, no pet.) (mem. op.)); see J.M.T., 519 S.W.3d at 267. We therefore conclude the evidence is legally and factually sufficient to support the trial court's termination under subsection (O). See Tex. Fam. Code § 161.001(b)(1)(O); J.F.C., 96 S.W.3d at 266-67. Because the evidence is legally and factually sufficient to support termination under subsection (O), we need not consider whether the evidence would support termination under subsection (P). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (holding only one predicate ground finding under subsection 161.001(b)(1) is necessary to support termination judgment when there is also best interest finding).
Best Interest
When conducting a best interest analysis, we have consistently recognized "[t]here is a strong presumption that a child's best interest is served by maintaining the relationship between a child and the natural parent, and the Department has the burden to rebut that presumption." C.R., 2020 WL 5646473, at *4. To determine whether the Department met its burden, we apply the non-exhaustive Holley factors promulgated by the Texas Supreme Court. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans held by the individuals seeking custody; (7) the stability of the home of the parent and the individuals seeking custody; (8) the acts or omissions of the parent may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. See id. Proof of every factor is not required for a trial court to find termination is in the child's best interest, and no single factor is necessarily dispositive. See In re A.B., 269 S.W.3d 120, 126 (Tex. App.-El Paso 2008, no pet.).
Promptly and permanently placing a child in a safe environment is also presumed in the child's best interest. Tex. Fam. Code § 263.307(a). Therefore, we also consider the factors listed in section 263.307 of the Texas Family Code regarding a parent's willingness and ability to provide the child with a safe environment. See id.; see also C.R., 2020 WL 5646473, at *4.
These factors include: the child's age and physical and mental vulnerabilities; the frequency and nature of out-of-home placements; the magnitude, frequency, and circumstances of the harm to the child; whether the child has been the victim of repeated harm after intervention by the Department; whether the child is fearful of returning to the child's home; the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home; whether there is a history of abusive conduct by the child's family or others who have access to the child's home; whether there is a history of substance abuse by the child's family or others who have access to the child's home; 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; the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; whether the child's family demonstrates adequate parenting skills; and whether an adequate social support system consisting of an extended family and friends is available to the child. See Tex. Fam. Code § 263.307.
Finally, we consider direct and circumstantial evidence, subjective factors, and the totality of the evidence in our best interest analysis. In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). Additionally, evidence proving any of the statutory grounds for termination is probative on the issue of best interest. See id. "A trier of fact may measure a parent's future conduct by [her] past conduct [in] determin[ing] whether termination of parental rights is in the child's best interest." Id.
Here, the evidence shows the Department became involved with the family due to concerns of domestic violence between G.R. and A.M. This court has recognized "[d]omestic violence may be considered in analyzing the best interest of the child." In re N.M.R., No. 04-22-00032-CV, 2022 WL 3640223, at *7 (Tex. App.-San Antonio Aug. 24, 2022, pet. denied) (mem. op.). "A parent endangers her children by accepting the endangering conduct of other people." K.V.C., 2022 WL 363951, at *5 (quoting In re L.W., No. 01-18-01025-CV, 2019 WL 1523124, at *13 (Tex. App.-Houston [1st Dist.] Apr. 9, 2019, pet. denied) (mem. op.)). The Department caseworker testified G.R. had made multiple outcries of domestic violence but was not forthcoming with information and retracted allegations when pressed. The Department caseworker testified at one point during the case, the Department took G.R. to a battered women's shelter, but G.R. left and chose to continue living with A.M. The caseworker further testified even though G.R. completed domestic violence classes, she believed it would not be safe for the children to return to G.R. because she believed domestic violence still occurred between the couple. She explained she had visited the couple's apartment a week before trial, and she heard a female screaming and items being thrown about the apartment.
The trial court also heard testimony from A.C.K.'s biological father, who testified G.R. has asked him to help her leave A.M. multiple times. He testified in July 2020, G.R. asked him to help her move out of the couple's apartment. He testified G.R. told her the abuse "was getting too much" and "[s]he couldn't take it anymore." While he was helping G.R., A.M. arrived and hit G.R. in the face, pulled her by her hair, and dragged her down. He testified G.R. was holding A.C.K. and A.M. pushed A.C.K. into her arms. He also testified as recent as the Wednesday before trial, G.R. asked him for help to get away. He testified G.R. told him A.M. had installed cameras all over the apartment to monitor her, and over the past year, he has put holes in the apartment walls and pushed her out of his vehicle into an intersection.
G.R., however, disputes the Department's evidence concerning domestic violence. During cross-examination, she acknowledged incidents had occurred, but since completing domestic violence classes, domestic violence has not occurred. She testified at most, she and A.M. have had arguments. A.M. also testified domestic violence never happened, and the trial court had recently dismissed a pending domestic violence case against him. The trial court, however, could have disbelieved G.R. and A.M.'s testimony, and we must defer to its credibility determinations. F.M., 2017 WL 393610, at *4. Based on this evidence, the trial court could have formed a firm belief or conviction G.R. would continue to remain with A.M. and repeatedly expose the children to cycles of domestic violence. See K.V.C, 2022 WL 363951, at *5-*6 (reasoning evidence showing parents were unable to break cycle of domestic violence supported best interest finding).
The Department also produced evidence it was concerned about G.R.'s drug use, and specifically, G.R.'s failure to take any drug tests set up by the Department. A parent's drug use factors into a best interest finding because a parent's "[d]rug abuse and its effect on the ability to parent can present an endangering course of conduct." In re J.J.W., No. 14-18-00985-CV, 2019 WL 1827591, at *6 (Tex. App.-Houston [14th Dist.] 2019, pet. denied) (mem. op.); e.g., N.M.R., 2022 WL 3640223, at *7. Here, the record shows when the Department became involved with the family, G.R. tested positive for methamphetamines and amphetamines. The Department caseworker testified she had requested G.R. to take a drug test at least seventeen times, and G.R. did not complete any of the requested tests. G.R., however, disputes the caseworker's testimony and testified the caseworker requested "less than ten" drug tests. She admits, however, she did not take any of the requested tests. The evidence also shows G.R. complied with "some" drug tests with the previous caseworkers, tested negative to those tests, and completed a drug treatment program. The caseworker, however, testified she was not convinced G.R. maintained sobriety because since she had taken over this case in November 2021, G.R. did not take any requested drug tests, resulting in the presumption she would have tested positive for drug use. See In re E.M., 494 S.W.3d 209, 222 (Tex. App.-Waco 2015, pet. denied) ("A factfinder may reasonably infer from a parent's refusal to take a drug test that the parent was using drugs.").
Regarding G.R.'s willingness and ability to provide her children with a safe environment, G.R. testified she had been living in the same two-bedroom apartment with A.M. throughout the course of the case. G.R. testified her apartment had been inspected by the two previous caseworkers in February 2021 and September 2021, and the only suggestions she received was to buy a highchair, which she purchased. However, the Department produced evidence G.R. was facing eviction for this apartment. Specifically, the Department caseworker testified the apartment office informed her G.R. and A.M. owed $18,000 in past-due rent, and the only reason they have not been evicted was because they changed the apartment locks. Accordingly, the trial court could have formed a firm belief or conviction G.R. did not have permanent, stable housing because she was at the risk of being evicted. See In re L.S., No. 13-18-00632-CV, 2019 WL 1474521, at *9 (Tex. App.-San Antonio Apr. 4, 2019, pet. denied) (mem. op.) (reasoning parent's eviction subjected child to life of uncertainty and instability, endangering child's physical and emotional well-being).
Finally, the trial court heard evidence the children were doing well in their current placements. The Department caseworker testified B.R.T. and A.C.K. are currently with A.C.K.'s biological father, who intends to adopt both children, and C.A.M. is currently placed in a foster-to-adopt home. She further testified the children are safe in their current placements, and the placements are meeting their needs. When asked about the permanency goal for the children, she testified the Department was working with A.C.K.'s father and C.A.M.'s foster family to permanently adopt the children. Accordingly, the trial court could have reasonably concluded G.R. could not provide the children with a safe and drug free environment, and it was in the children's best interest to remain with their placements so they could be adopted. See In re S.J.R.-Z., 537 S.W.3d 677, 695-98 (Tex. App.-San Antonio 2017, pet. denied) (mem. op.) (determining trial court could have reasonably concluded Mother was unable to provide safe and stable environment for children when record showed Mother stayed in ongoing abusive relationship).
When viewing this evidence under the appropriate standards of review, we conclude it is legally and factually sufficient to support the trial court's best-interest finding. Here, the Department produced considerable evidence showing G.R. continued to stay in an abusive relationship, failed to cooperate with the Department and take requested drug tests, and was facing eviction. And, as indicated above, the trial court heard evidence G.R. failed to comply with her service plan, and such noncompliance is probative of the children's best interest. See In re O.N.H., 401 S.W.3d 681, 687 (Tex. App.-San Antonio 2013, no pet.). Based on this evidence, we conclude the trial court could have reasonably formed a firm belief or conviction termination of G.R.'s parental rights was in the children's best interest. See J.F.C., 96 S.W.3d at 266. We further conclude any disputed evidence, viewed in light of the entire record, could have been reconciled in favor of the trial court's best-interest finding or was not so significant the trial court could not have reasonably formed a firm belief or conviction termination was in the children's best interest. See id. We therefore hold the evidence is legally and factually sufficient to support the trial court's best-interest finding. See Tex. Fam. Code § 161.001(b)(2).
Conservatorship Finding
Finally, G.R. challenges the trial court's appointment of A.C.K.'s father and the Department as managing conservators by arguing the evidence is insufficient to support termination of her parental rights. She contends we should reinstate pre-suit conservatorship status, and if she is not immediately reunited with her children, her possession rights should be restored to allow her to receive services and complete her service plan.
Here, the trial court's conservatorship order was not made solely because of the termination order. Instead, regarding B.R.T. and C.A.M., the trial court's appointment of the Department as conservator was based on the trial court's findings that appointment of G.R. as a managing conservator was not in B.R.T. and C.A.M.'s best interest and such appointment would significantly impair their physical health or emotional development. See Tex. Fam. Code § 153.131 (authorizing appointment of Department as nonparent managing conservator if trial court makes certain findings). With respect to A.C.K., the trial court's appointment of A.C.K.'s father as conservator was based on the trial court's findings that material and substantial changes have occurred since the prior temporary order and appointment of A.C.K.'s father as sole managing conservator would be a positive improvement for A.C.K.
G.R. only challenges the conservatorship findings by attacking the sufficiency of the termination order, and she does not challenge the other findings supporting the conservatorship order. Because she does not challenge these other findings, and we have already held the evidence supports termination is in the children's best interest, we affirm the trial court's conservatorship finding. See In re J.A.J., 243 S.W.3d 611, 615-17 (Tex. 2007) (holding parent must specifically challenge trial court's section 153.131 findings because such a challenge not subsumed within parent's challenge to termination order); see N.M.R., 2022 WL 3640223, at *10.
Conclusion
We affirm the trial court's order terminating G.R..'s parental rights to B.R.T., A.C.K., and C.A.M.