Opinion
No. 04-15-00582-CV
03-02-2016
IN THE INTEREST OF C.A. and M.A., Children
MEMORANDUM OPINION
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2014-PA-01957
Honorable Martha Tanner, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice AFFIRMED
The Honorable David A. Canales is the presiding judge of the 73rd Judicial District Court, Bexar County, Texas. However, the termination order in this matter was signed by the Honorable Martha Tanner, senior judge, sitting by assignment.
Appellants L.C. and P.A. appeal the trial court's order terminating their parental rights to their children, C.A. and M.A. L.C.'s court-appointed attorney filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967). In his only issue on appeal, P.A. asserts the evidence was neither legally nor factually sufficient to support the court's finding, pursuant to section 161.001(1)(O) of the Texas Family Code, that P.A. failed to comply with the provisions of a court order that established the actions necessary for P.A. to obtain the return of the children. We affirm the trial court's judgment as to both parents.
For purposes of this appeal and for the privacy of the children, we refer to the appellants and the children by their initials. --------
FACTUAL AND PROCEDURAL BACKGROUND
This is an accelerated appeal stemming from the trial court's order terminating L.C.'s and P.A.'s parental rights to their two minor children. The Department filed its Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship on August 15, 2014. The petition sought termination of both L.C.'s and P.A.'s parental rights. The trial court signed an emergency order taking the children into custody and subsequently signed temporary orders following an adversary hearing. The children were placed in the temporary managing conservatorship of the Department, and L.C. and P.A. were awarded temporary possessory conservatorship. A Family Service Plan was created for L.C. and P.A. The required status and permanency hearings were conducted.
The case was called to trial and on July 28, 2015, the trial court terminated the parental rights of both parents and this appeal ensued.
L.C.'S APPEAL
L.C.'s court-appointed counsel filed a brief containing a professional evaluation of the record and demonstrating that there are no arguable grounds to be advanced. Counsel concludes that the appeal is without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). See In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied) (applying Anders procedure in an appeal from termination of parental rights); In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004, no pet.); In re R.R., No. 04-03-00096-CV, 2003 WL 21157944, at *4 (Tex. App.—San Antonio May 21, 2003, no pet.) (mem. op.). Counsel provided L.C. with a copy of the brief, and L.C. was informed of her right to review the record and to file a pro se brief. L.C. has not filed a pro se brief. After reviewing the record and counsel's brief, we agree that L.C.'s appeal is without merit. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.).
P.A.'S APPEAL
The trial court also found by clear and convincing evidence that termination of P.A.'s parental rights was in the children's best interests. See TEX. FAM. CODE ANN. § 161.001(2) (West 2014). The court concluded that P.A.
failed to comply with the provisions of a court order that specifically established the actions necessary for the father 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 Chapter 262 for the abuse or neglect of the child, pursuant to § 161.00l(1)(O), Texas Family Code.See id. § 161.001(1)(O).
In his appeal, P.A. contends the evidence is legally and factually insufficient to support the court's finding, pursuant to section 161.001(1)(O) of the Texas Family Code, specifically that P.A. failed to comply with the provisions of a court order that established the actions necessary for him to obtain the return of the children.
A. Standard of Review
"Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them. . . ." In re L.J.N, 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.—Corpus Christi 2006, no pet.)).
An order terminating parental rights must be supported by clear and convincing evidence that (1) the parent has committed one of the grounds for involuntary termination as listed in section 161.001(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. Id. § 161.001(2); In re J.F.C., 96 S.W.3d at 261. "There is a strong presumption that the best interest of the child is served by keeping the child with its natural parent, and the burden is on [the Department] to rebut that presumption." In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). "The same evidence of acts or omissions used to establish grounds for termination under section 161.001(1) may be probative in determining the best interest of the child." Id.
When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "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.F.C., 96 S.W.3d at 266; In re J.L., 163 S.W.3d 79, 85 (Tex. 2005). If the court "determines that [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true," the evidence is legally sufficient. See In re J.L., 163 S.W.3d at 85; In re J.F.C., 96 S.W.3d at 266.
Under a clear and convincing standard, evidence is factually sufficient if "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); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San Antonio 2004, no pet.). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." In re J.F.C., 96 S.W.3d at 266; accord In re C.H., 89 S.W.3d at 25.
B. Arguments of the Parties
P.A. contends his caseworker only asked him to attend drug counseling one month prior to trial and that the evidence supports he can provide his children a home and meet all of their needs. He contends he has an adequate support system and that he lives with his parents and siblings for further support.
The Department counters that P.A. failed to complete the majority of his service plan and that he lacks the financial stability or housing to provide for his children. Additionally, the Department points to P.A.'s cocaine-positive drug tests as proof that he continues to break the law and abuse drugs in contravention of his felony probation and his service plan.
C. Grounds for Termination under Section 161.001(1)(O)
The family service plan required P.A. to complete the following nine tasks and services:
(1) submit to random urinalysis at a time frame specified by the caseworker;
(2) maintain significant contact with his children and must maintain weekly contact with caseworker;
(3) proof of legal employment, shown by providing pay check stubs or receipts of payments in order to assess the ability to financial support the family;
(4) participate in individual counseling and psychosocial assessment and address the following: His responsibilities as a parent; His past and/or current drug use; Protective capacities; History of abuse/neglect; Coping skills in the daily stresses of being a patent; Current living situation and support system;
(5) upon a positive drug test or admission to using drugs, complete a drug/alcohol assessment and follow through with all recommendations to include inpatient/outpatient services and counseling;
(6) comply with the terms of his probation and provide documentation of compliance to the Department and his attorney;
(7) provide proof of safe and stable housing and provide positive supports to the Department;
(8) participate and complete services through VENT: Violence Education and Nurturing Training; and
(9) compile a list of positive supports and develop a relapse prevention plan.
D. Evidence before the trial court
Although the trial court heard testimony over several days, we limit our discussion to evidence relating to the termination of P.A.'s parental rights.
1. L.C.'s Testimony
L.C. testified that C.A. was born on May 11, 2013. At the time of his birth, C.A. tested positive for opiates and exhibited signs of withdrawal. L.C. admitted she snorted heroin during her pregnancy and, although her doctor wanted her to move to methadone, L.C. did not like the side effects. At that point, L.C. had been with P.A. for almost three years. L.C. testified that P.A. did not use drugs but that he sold drugs and was on probation for possession with intent to deliver. L.C. further testified that P.A. knew she was addicted to heroin and that while she was pregnant with C.A., P.A. decided it was better to give L.C. the drugs than to have her on the street looking for them.
M.A. was born fifteen months later; he tested positive for both opiates and marijuana. Both children were removed and placed in the Department's custody after M.A.'s birth.
2. P.A.'s Testimony
P.A. testified that he was aware that C.A. was born addicted to opiates, but he "was not sure" about M.A. P.A. understood that M.A. was in the hospital for longer than normal, but he was unaware that M.A. had been born with drugs in his system. P.A. testified that at the time of M.A.'s birth, he was living with L.C. and that she was not using drugs. P.A. acknowledged knowing of L.C.'s drug addiction, but denied supplying her with drugs while she was pregnant. P.A. invoked his right to remain silent regarding many of the questions pertaining to his drug use or drug conviction. P.A. acknowledged he was on probation for possession of heroin with intent to deliver.
As to his service plan, P.A. claimed that he completed his domestic violence counseling and that when L.C. tested positive for drugs three months before trial, he complied with the Department's directive to stay away from her. P.A. tested positive for cocaine on two different occasions. He testified that he had not started outpatient treatment because he thought his attendance at Narcotics Anonymous once a week was sufficient.
P.A. also testified that for the past two months he was working at Reed's Candles; he worked at Church's Fried Chicken for five months before that, and Arrowhead Construction for the two months preceding Church's. As for his education, P.A. stated that he completed the GED classes, but that he did not have the money to pay for the test.
P.A. testified that he wanted both children placed with him.
So all I got to worry about is making sure that they're safe, they don't hurt themselves, they're fed, they're not sick or nothing hurts them. I just—I'm just ready to have my kids, ma'am. I'm ready.When asked, P.A. explained that C.A. has special needs and that "something with his leg or something" and "asthma or something with his nose." He further testified that M.A. has bronchitis.
P.A. did not sign the birth certificates for either child and did not ask the court for DNA testing. When asked, he could not provide C.A.'s date of birth. Additionally, he was over an hour late for the first day of testimony and an hour and a half late on the second day.
Between May of 2013 and August of 2014, the Department considered P.A.'s and L.C.'s case as "Family Based." As such, the Department was making reasonable efforts to reunify the family. At that time, C.A. was living with L.C.'s sister. Although his caseworker set up counseling with three different counselors, P.A. never completed counseling and never met with any of the counselors. When M.A. was born in August of 2014, the Department moved the case from "Family Based" to "Legal." As for his support system, P.A. pointed to his sister, his aunt, and his mother. When asked, P.A. acknowledged that his sister was currently on probation for possession with intent to deliver and his mother had convictions for possession of a controlled substance, shoplifting, assault causing bodily injury, and had been diagnosed with depression.
P.A. also understood that L.C.'s rights were terminated to her daughter from a previous relationship, but conceded that he never asked her why.
3. Department Caseworker's Testimony
The Department caseworker was asked about P.A.'s completion of his service plan. She testified that P.A. had not completed his service plan and he had tested positive for drugs on two different occasions. In particular, the caseworker was concerned that P.A. never completed or attended the mandatory counseling, he did not appear to understand the importance of the situation or why the Department was involved with C.A. and M.A., and that throughout the pendency of the case, P.A. failed to provide any evidence that he could maintain steady employment or provide a stable home environment for the children.
4. Foster Mother's Testimony
The children's foster mother also testified. She explained that both C.A. and M.A. have been in her possession since September 9, 2014. When asked about any problems with C.A.'s leg, the foster mother said she was not aware of any. She also testified that he did have asthma, but that it was controlled with occasional use of a nebulizer. As to M.A., the foster mother testified to the signs of withdrawal and his stiff limbs when he came home from the hospital. Finally, she described both boys as happy, healthy, energetic boys to whom she was committed long-term and hoped to someday adopt.
E. Analysis
"Texas courts have held that substantial compliance is not enough to avoid a termination finding under section 161.001(1)(O)." In re C.M.C., 273 S.W.3d 862, 875 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see also In re I.G., 383 S.W.3d 763, 771 (Tex. App.—Amarillo 2012, no pet.). More specifically, "any excuse for failing to complete a family services plan goes only to the best interest determination," and not to whether sufficient evidence supports a predicate finding under subsection O. In re M.C.G., 329 S.W.3d 674, 675 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); see also In re C.S., No. 02-14-00386-CV, 2015 WL 1869443, at *10 (Tex. App.—Fort Worth Apr. 23, 2015, no pet.).
Although there is evidence that P.A. attempted to comply with portions of his court-ordered services, he failed to follow these tasks through to completion. P.A. failed to attend the required counseling, tested positive for cocaine on at least two occasions, failed to maintain steady employment, and failed to secure a safe living environment for the children. See In re A.D., 203 S.W.3d 407, 411-12 (Tex. App.—El Paso 2006, no pet.) (affirming termination under subsection O because mother failed to meet her service plan's material requirements including finding a job, refraining from drug use, and providing a safe home). "[S]poradic incidents of partial compliance [with a court-ordered family service plan] do not alter the undisputed fact that the parent[] violated many material provisions of the trial court's order[]." See In re J.F.C., 96 S.W.3d at 278.
Based upon our review of the entire record, we conclude the "factfinder could [have] reasonably form[ed] a firm belief or conviction about the truth of the [Department]'s allegations." See In re C.H., 89 S.W.3d at 25. The trial court could have found by clear and convincing evidence that P.A. failed to complete the Department's family service plan. See id. Because "[o]nly one predicate finding under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest," we conclude that the evidence is legally and factually sufficient to support the trial court's order of termination. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Accordingly, we overrule P.A.'s sole issue on appeal and affirm the trial court's termination order.
Patricia O. Alvarez, Justice