Opinion
NO. 01-16-00719-CV
03-09-2017
IN THE INTEREST OF C.A.W., A CHILD
On Appeal from the 314th District Court Harris County, Texas
Trial Court Case No. 2015-04788J
MEMORANDUM OPINION
In this accelerated appeal, appellant, S.O., challenges the trial court's order, entered after a bench trial, terminating her parental rights to her minor child ("the child"). In two issues, S.O. contends that the evidence is legally and factually insufficient to support the trial court's findings that she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the child and termination of her parental rights was in the best interest of the child.
See TEX. FAM. CODE ANN. § 263.405(a) (Vernon 2014); TEX. R. APP. P. 28.4.
See TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (Vernon Supp. 2016).
See id. § 161.001(b)(2).
Because all parties agree that the evidence is factually insufficient to support the trial court's best-interest finding and request reversal of the portion of trial court's judgment terminating S.O.'s parental rights, we reverse and remand.
Background
On August 13, 2015, the Texas Department of Family and Protective Services ("DFPS") filed a petition seeking managing conservatorship of the child and termination of S.O.'s parental rights to him.
At the time of trial, the child was almost two years old and S.O. was seventeen years old.
At trial, DFPS caseworker Yadira Silva testified that DFPS took the child into custody after allegations arose of S.O.'s physical neglect, medical neglect, and neglectful supervision of the child. At the time, S.O., who was sixteen years old, and the child lived in the home of S.O.'s mother. The child had scabies and scratches, was not being properly supervised, and was malnourished. S.O. did not give the child medication to treat his scabies, and as a result he "suffered wounds" on his legs, forearms, and face. Silva noted that the home in which S.O. and the child lived was "filthy dirty," with "feces around," and S.O. did not properly wash the child's bottles. S.O. was "going out with [an alleged] father who [was] drink[ing] every night and . . . using cocaine" in the home. And during an altercation between S.O. and an alleged father, the child "fell down as a result." Silva also noted that prior to DFPS's involvement, S.O. had not attended school for two years, and at seventeen years old, she was in the ninth grade.
We note that there are two alleged fathers in this case, and Silvia is not clear to which alleged father she is referring.
Initially, DFPS removed both S.O. and the child from the home of S.O.'s mother and placed them together at a shelter. However, when the shelter's staff notified DFPS that the child had "scratches on him," DFPS removed him from S.O.'s care and placed him in a foster home. Silva explained that at the time of trial, S.O. was in a "group home for teen moms" in San Antonio, Texas. And since DFPS had placed the child in the foster home, S.O. had given birth to a second child, who resided with her in the group home. Further, S.O. told Silva that when she is eighteen years old, she will "age out" of the group home and intends to leave it.
A Permanency Report to the Court, admitted into evidence, states that DFPS removed the child from the shelter "due to allegations about [him] having scratches" and the shelter staff believed that S.O. was the cause of the scratches.
Silva explained that S.O. had taken the second child to a doctor and had been compliant in giving the child the medications prescribed by the doctor. S.O. had also been keeping the second child clean, and DFPS did not remove the child from S.O.'s care.
Silva further testified that although DFPS had given S.O. a Family Service Plan ("FSP"), she did not complete all of its requirements. Specifically, S.O. did not attend school regularly. During her summer-school session, S.O. missed school for two days, and during the previous semester, she had been absent from school for fifty days. S.O. told Silva that she had missed school because she did not want to go, missed the child, and did not feel well. When asked whether S.O. had "attend[ed] school daily unless she ha[d] a doctor's appointment," as required by her FSP, Silva responded, "No." Silva also explained that S.O. had not provided her school grades to her caseworker and had not completed her individual or group therapy. However, S.O. did complete her psychological evaluation and parenting classes.
At the time of trial, the child had been living with his current foster parents for about six months, and they were meeting his medical needs. Silva explained that the child is doing "very well" in his current placement and his foster parents want to adopt him. She noted that the child does not have "any ongoing conditions, special needs," or "medical needs" and it is in his best interest to remain with his foster parents, rather than to be returned to S.O. Silva noted, however, that DFPS was only requesting permanent managing conservatorship of the child; it was not requesting termination of S.O.'s parental rights. Yet, Silva opined that the child would not be "safe and stable" if returned to S.O. And if S.O. were to leave her group home, she would not be able to adequately care for the child or provide him with a safe and stable environment, particularly because she does not have any familial support and has another child in her care.
The record indicates that this was not the first foster home in which DFPS had placed the child.
The Permanency Report to the Court states that the child is reaching his developmental milestones. He has learned to walk and is learning to speak. He enjoys playing outside, reading books, and playing with toy cars, blocks, and balls. He is learning sign language at the instructional daycare that he attends. He also attends social outings with his foster parents. The report further notes that his needs are being met by his foster parents and he is "in a safe and protective home with [his] current caregivers."
Kimberly Bramlett, a volunteer with Child Advocates Inc., testified that the child is doing well in his current placement, and she opined that it is in his best interest to remain in his current placement and not be returned to S.O. Specifically, Bramlett expressed her concerns about S.O.'s ability to provide a safe and stable home for the child, S.O.'s intention to leave the group home when she is eighteen years old, and the fact that S.O. had not been attending school, even while living in a stable and structured environment in her group home. Thus, Bramlett requested termination of S.O.'s parental rights.
S.O. testified that she had missed several days of school because she did not feel safe at school and had not been "receiving any education at the school." S.O. explained, "[T]hey had me doing a lot of things in PE. I almost fell down the stairs. There w[ere] a lot kids pushing me." And after she had given birth to her second child, she continued to be absent from school because she had "a lot of things" to deal with after "the baby's body br[oke] out from the eczema." Even still, she attended summer school during the two months prior to trial and she successfully completed it. However, S.O. did admit that she knew that the trial court had ordered her to attend school regularly, and between October 2015 and February 2016, she missed "more than 50 days" of school. And she conceded that prior to giving birth to the child, she had not attended school for two years because she had "dropped out."
S.O. further testified that when she is eighteen years old she intends to leave the group home and plans to "look for a [new] place [to live] before" she leaves it. Although she has not determined how she will obtain money to pay for a place to live, she "want[s] to keep" the child.
The trial court admitted into evidence the FSP and October 27, 2015 Status Hearing Order, in which it found that S.O. had reviewed, understood, and signed her FSP. It further found that she had been "advised that unless she [was] willing and able to provide the child with a safe environment, even with the assistance of a service plan, within the reasonable period of time specified in the [FSP], her parental and custodial duties and rights may be subject to restriction or to termination or the child may not be returned to her." And the trial court ordered S.O. to complete the requirements of her FSP.
Standard of Review
A parent's right to "the companionship, care, custody, and management of" her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982) (internal quotations omitted). The United States Supreme Court has emphasized that "the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by th[e] Court." Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas Supreme Court has concluded that "[t]his natural parental right" is "essential," "a basic civil right of man," and "far more precious than property rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (internal quotations omitted). Consequently, "[w]e strictly construe involuntary termination statutes in favor of the parent." In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012).
Because termination of parental rights is "complete, final, irrevocable and divests for all time that natural right . . . , the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights." Holick, 685 S.W.2d at 20. Clear and convincing evidence is "the measure or degree of 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." TEX. FAM. CODE ANN. § 101.007 (Vernon 2014); see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the standard of proof is "clear and convincing evidence," the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C., 96 S.W.3d at 264-68.
In conducting a legal-sufficiency review in a termination-of-parental-rights case, we must determine whether the evidence, viewed in the light most favorable to the finding, is such that the fact finder could reasonably have formed a firm belief or conviction about the truth of the matter on which DFPS bore the burden of proof. Id. In viewing the evidence in the light most favorable to the finding, we "must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so," and we "should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). However, this does not mean that we must disregard all evidence that does not support the finding. In re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we must also be mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id. If we determine that no reasonable trier of fact could form a firm belief or conviction that the matter that must be proven is true, we must hold the evidence to be legally insufficient and render judgment in favor of the parent. Id.
In conducting a factual-sufficiency review in a parental-rights-termination case, we must determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a fact finder reasonably could have formed a firm conviction or belief about the truth of the matter on which DFPS bore the burden of proof. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). We should consider whether the disputed evidence is such that a reasonable fact finder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266-67. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (internal quotations omitted).
Sufficiency of the Evidence
In two issues, S.O. argues that the trial court erred in terminating her parental rights to the child because the evidence is legally and factually insufficient to support the trial court's findings that she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the child and termination of her parental rights was in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O), (b)(2) (Vernon Supp. 2016).
In order to terminate the parent-child relationship, DFPS must establish, by clear and convincing evidence, one or more of the acts or omissions enumerated under Texas Family Code section 161.001(b)(1) and that termination is in the best interest of the child. See id. § 161.001(b). Both elements must be established, and termination may not be based solely on the best interest of the child as determined by the trier of fact. Id.; Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Notably though, "[o]nly one predicate finding under section 161.001[(b)](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Failure to Comply with Court Order
In her first issue, S.O. argues that the evidence is legally and factually insufficient to support termination of her parental rights to the child under section 161.001(b)(1)(O) because she complied with her FSP, her "delinquency issues" were not her fault, and she had "improved her delinquency issues by consistently attending [school] throughout the summer."
Section 161.001(b)(1)(O) allows termination of the parent-child relationship when a parent has failed to satisfy the conditions of her FSP. Specifically, a trial court may order termination of the parent-child relationship if it finds by clear and convincing evidence that a parent has:
failed to comply with the provisions of a court order that specifically establish the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of [DFPS] 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.TEX. FAM. CODE ANN. § 161.001(b)(1)(O); see also Liu v. Dep't of Family & Protective Servs., 273 S.W.3d 785, 801 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
S.O. does not dispute that the child had been in the permanent or temporary managing conservatorship of DFPS for not less than nine months as a result of his removal under Chapter 262 for abuse or neglect. See id. § 161.001(b)(1)(O).
Texas courts generally take a strict approach to subsection (O)'s application. In re D.N., 405 S.W.3d 863, 877 (Tex. App.—Amarillo 2013, no pet). The burden of complying with the court order is on the parent. In re D.N., 405 S.W.3d at 878. Courts do not measure the "quantity of failure" or "degree of compliance." Id. at 877. Rather, a court looks for a parent's failure to comply. See In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.) (holding subsection (O) does not intend evaluation of parent's partial achievement of plan requirements); see also In re A.W., No. 01-15-01030-CV, 2016 WL 3022824, at *7 (Tex. App.—Houston [1st Dist.] May 26, 2016, no. pet.) (mem. op.) (holding substantial compliance with court-ordered FSP may be insufficient to avoid termination). Subsection (O) does not "make a provision for excuses" for the parent's failure to comply with her FSP. In re D.N., 405 S.W.3d at 877 (internal quotations omitted); see also In re M.C.G., 329 S.W.3d 674, 675 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); In re J.S., 291 S.W.3d at 67.
Notably, despite the strict approach, DFPS must still present evidence that a court-ordered plan established specific actions that a parent must take for the return of a child. In re D.N., 405 S.W.3d at 877-78. In other words, a FSP must be specific enough to allow for a parent's compliance to be objectively measured. Id. at 878-79.
Here, the trial court ordered S.O. to comply with her FSP, which included the following requirements:
A trial court may direct a parent to perform specific acts by ordering her to comply with a FSP created by DFPS. See In re K.N.D., No. 01-12-00584-CV, 2014 WL 3970642, at *6 (Tex. App.—Houston [1st Dist.] Aug. 14, 2014, no pet.) (mem. op.); see also TEX. FAM. CODE ANN. § 161.001(b)(1)(O).
• Remain in school and complete school work in a timely manner;
• Provide grades and attendance to her caseworker during her monthly face-to-face meetings;
• Attend school daily unless she has a doctor's appointment; and
• Attend individual and group therapy and follow recommendations of the psychological evaluation.
Silva testified that S.O. did not complete all of the requirements under her FSP. Specifically, S.O. did not attend school regularly. During her summer-school session, S.O. had been absent from school for two days, and during the previous semester, S.O. had been absent from school for fifty days. S.O. told Silva that she had missed school because she did not want to go, missed the child, and did not feel well. When asked whether S.O. had "attend[ed] school daily unless she ha[d] a doctor's appointment," as required by her FSP, Silva responded, "No." Silva also noted that S.O. had not provided her school grades to her caseworker and had not completed her individual or group therapy.
S.O. admitted that she had been absent from school for several days, both before and after the birth of her second child. She noted that she knew that the trial court had ordered her to attend school; however, between October 2015 and February 2016, she had missed "more than 50 days" of school. S.O. explained that she had missed school because she did not feel safe at school and had not been "receiving any education at the school." S.O. noted, "[T]hey had me doing a lot of things in PE. I almost fell down the stairs. There w[ere] a lot kids pushing me." And after she had given birth to her second child, she continued to be absent from school because she had "a lot of things" to deal with after "the baby's body br[oke] out from the eczema."
A parent's failure to complete one requirement of her FSP supports termination under subsection (O). See TEX. FAM. CODE ANN. § 161.001(b)(1)(O); In re M.C.G., 329 S.W.3d at 675. Substantial or partial compliance with a court-ordered FSP is insufficient to avoid termination. See In re T.T., 228 S.W.3d 312, 319-20 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); see also In re J.F.C., 96 S.W.3d at 278 ("[S]poradic incidents of partial compliance do not alter the undisputed fact that the parties violated many material provisions of the trial court's orders."); In re M.C.G., 329 S.W.3d at 676 ("The Family Code does not provide for substantial compliance with a [FSP]."); Liu, 273 S.W.3d at 801-02 (affirming termination of mother's parental rights despite partial compliance with FSP).
Here, S.O. admitted that she had not complied with at least one requirement of her FSP, i.e., daily attendance of school. And although she asserts that her "delinquency issues" were not her fault, we note that the Family Code "does not make a provision for excuses." In re C.M.C., 273 S.W.3d 862, 875 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see also In re J.S., 291 S.W.3d at 67 (rejecting mother's argument she "offered evidence to provide excuses for her failure to achieve the plan's goals"); In re M.A.B., No. 01-15-00388-CV, 2015 WL 6081937, at *7 (Tex. App.—Houston [1st Dist.] Oct. 15, 2015, pet. denied) (mem. op.) ("[A]ny excuse for failing to complete a family service plan goes only to the best interest determination, and not whether sufficient evidence supports a predicate finding under subsection O." (internal quotations omitted)). Further, although S.O. asserts that her "delinquency issues" had improved during her summer-school session, Silva testified that S.O. had still missed school for two days during summer school. Cf. In re J.S., 291 S.W.3d at 66-67 (affirming termination under subsection (O) where trial court noted parent had made progress in last few months).
Moreover, in addition to missing school, the record indicates that S.O. did not provide her school grades to her caseworker and did not complete her individual or group therapy. Thus, although S.O. showed improvement in regard to her school attendance in the few months before trial, she still did not comply with all of the requirements of her FSP. See In re M.C.G., 329 S.W.3d at 675 (parent's failure to complete one requirement of her FSP supports termination); In re J.S., 291 S.W.3d at 66-67 ("Despite [parent]'s achievement of some of the plan's goals, the evidence establishes that other requirements of the plan were not achieved.").
Viewing the evidence in the light most favorable to the trial court's finding, we conclude that the trial court could have formed a firm belief or conviction that S.O. failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the child, who was in the permanent or temporary managing conservatorship of DFPS for not less than nine months as a result of his removal from S.O. under Chapter 262. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O). And, viewing the evidence in a neutral light, we conclude that a reasonable fact finder could have formed a firm belief or conviction that S.O. failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the child, who was in the permanent or temporary managing conservatorship of DFPS for not less than nine months as a result of his removal from S.O. under Chapter 262. See id.
Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court's finding that S.O. failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the child. See id.
We overrule S.O.'s first issue.
Best Interest of Child
In her second issue, S.O. argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of the child because DFPS did not request termination of S.O.'s parental rights and DFPS "could have continued monitoring the situation and worked with [her]."
A strong presumption exists that a child's best interest is served by maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). In determining whether the termination of her parental rights was in the best interest of the child, we may consider several factors, including: (1) the child's desires; (2) the current and future physical and emotional needs of the child; (3) the current and future emotional and physical danger to the child; (4) the parental abilities of the parties seeking custody; (5) whether programs are available to assist those parties; (6) plans for the child by the parties seeking custody; (7) the stability of the proposed placement; (8) the parent's acts or omissions that may indicate that the parent-child relationship is not proper; and (9) any excuse for the parent's acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re L.M., 104 S.W.3d at 647. The Holley factors are not exhaustive, and there is no requirement that DFPS prove all factors as a condition precedent to the termination of parental rights. See In re C.H., 89 S.W.3d at 27. The same evidence of acts and omissions used to establish grounds for termination under section 161.001(b)(1) may also be relevant to determining the best interest of the child. See id. at 27-28; In re L.M., 104 S.W.3d at 647.
We note that there is no evidence in the record regarding the child's desires.
In regard to the current and future emotional and physical needs of the child and the current and future emotional and physical danger to him, the record shows that DFPS removed him from S.O.'s care after allegations arose of physical neglect, medical neglect, and neglectful supervision. At the time of removal, the child had scabies and scratches, was not properly supervised, and was malnourished. S.O. did not give the child medication to treat his scabies, and as a result he "suffered wounds" on his legs, forearms, and face. See In re L.G.R., 498 S.W.3d 195, 205-06 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (fact finder could have inferred mother's past inattention to child's medical needs would continue); In re P.R.W., 493 S.W.3d 738, 746 (Tex. App.—Corpus Christi 2016, no pet.) (mother's failure to give child asthma medication supported inference meeting child's physical needs not priority of mother). Additionally, S.O. and the child lived in a home, which was "filthy dirty" and contained feces, and S.O. did not wash the child's bottles. S.O. was also "going out with [an alleged] father who [was] drink[ing] every night and . . . using cocaine" in the home. And the child had fallen as a result of an altercation that had occurred between S.O. and an alleged father. Further, although the child was initially placed with S.O. in a shelter, DFPS subsequently removed him from her care after the shelter staff saw him with scratches, which they believe were caused by S.O. See TEX. FAM. CODE ANN. § 263.307(b)(3), (8), (11), (12)(A), (C), (D), (F) (Vernon Supp. 2016) (considering harm to child, history of substance abuse by child's family or others with access to child's home, willingness and ability of child's family to effect positive environmental and personal changes, and whether parent demonstrates adequate parenting skills, including adequate health and nutritional care, guidance and supervision, safe physical home environment, and understanding of child's needs); In re Z.B., No. 02-14-00175-CV, 2014 WL 5409103, at *8 (Tex. App.—Oct. 23, 2014, no pet.) (mem. op.) (mother, at times, declined to care for child); In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ("A fact finder may infer from a parent's past inability to meet a child's physical and emotional needs an inability or unwillingness to meet a child's needs in the future."); Adams v. Tex. Dep't of Family & Protective Servs., 236 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (parent's history of failing to provide children with stable and nurturing environment demonstrates termination of parental rights in best interest of children)
S.O. currently lives in a "group home for teen moms." However, according to S.O., she will "age out" of the home when she is eighteen years old and intends to leave it, even though she is not sure how she will obtain money to pay for a new place to live. See In re B.J., No. 01-15-00886-CV, 2016 WL 1389054, at *10-11 (Tex. App.—Houston [1st Dist.] Apr. 7, 2016, no pet.) (mem. op.) (mother did not demonstrate she could provide safe and stable home); In re Z.B., 2014 WL 5409103, at *8 (mother's housing instability represented danger to child's development).
The child is currently living in a foster home, and his foster parents would like to adopt him. He is doing "very well" in his current placement, and all of his needs, medical or otherwise, are being met. His current placement is considered "a safe and protective home," and he is meeting his developmental milestones. See TEX. FAM. CODE ANN. § 263.307(a) ("[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest."); In re Z.B., 2014 WL 5409103, at *8-9 (considering foster family's ability to meet child's physical and emotional needs); In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.) (child's need for stable, permanent home paramount consideration in best interest determination).
In regard to parental abilities, as previously noted, DFPS took the child into custody based on allegations of S.O.'s physical neglect, medical neglect, and neglectful supervision of the child. At the time, S.O. and the child were living in a home that was "filthy dirty," with "feces around." He had scabies and scratches, was not being properly supervised, and was malnourished. S.O. had not been giving him medication to treat his scabies, which caused him to "suffer[] wounds" on his legs, forearms, and face. S.O. had also not been washing the child's bottles, not attending school, and "going out with [an alleged] father who [was] drink[ing] every night and . . . using cocaine" in the home. And an altercation between S.O. and an alleged father had caused the child to "f[a]ll down."
Further, after DFPS removed S.O. and the child from the home in which they were living and took them to a shelter, the shelter staff opined that S.O. had been scratching the child, prompting DFPS to remove him from S.O.'s care. Moreover, Silva opined that the child would not be "safe and stable" in S.O.'s care. And if S.O. were to leave her group home, she would not be able to adequately care or provide for the child. See TEX. FAM. CODE ANN. § 263.307(b)(3), (8), (11), (12)(A), (C), (D) (considering parent's ability to provide safe home environment, harm to child, history of substance abuse by child's family or others with access to home, willingness and ability of child's family to effect positive environmental and personal changes, and whether parent demonstrates adequate parenting skills, including adequate health and nutritional care and guidance and supervision); In re B.J., 2016 WL 1389054, at *12 (considering lack of safe or stable home when determining parental ability); In re J.D., 436 S.W.3d at 119 ("A parent's inability to provide adequate care for her children, unstable lifestyle, lack of a home and income, lack of parenting skills, and poor judgment may be considered when look at the children's best interests."); In re J.J.G., No. 14-15-00094-CV, 2015 WL 3524371, at *7 (Tex. App.—Houston [14th Dist.] June 4, 2015, no pet.) (mem. op.) (when determining parental ability, considering "past performance as a parent" and failure to comply with court-ordered services).
Bramlett also expressed concern that S.O. would not be able to provide a safe and stable home for the child
The child is doing "very well" in his current placement, and his foster parents, who would like to adopt him, are meeting his needs. He has learned to walk and is learning to speak. And he attends social outings with his foster parents, who have provided him with "a safe and protective home." See TEX. FAM. CODE ANN. § 263.307(a) ("[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest."); In re Z.B., 2014 WL 5409103, at *9 (foster family, who sought to adopt child, meeting her physical and emotional needs).
In regard to programs available to assist S.O., Silva testified that S.O. is living in a "group home for teen moms." However, the record indicates that S.O. intends leave the group home within a year. Although S.O. received a FSP, she did not complete all of its requirements. Most notably, S.O., who was in the ninth grade at the time of trial, did not attend school regularly. She also did not provide her school grades to her caseworker, and she did not complete her individual or group therapy. See In re B.J., 2016 WL 1389054, at *12 (mother did not complete FSP requirements); In re Z.B., 2014 WL 5409103, at *9 (mother did not take advantage of DFPS services offered to her); In re T.L.S., No. 01-12-00434-CV, 2012 WL 6213515, at *7 (Tex. App.—Houston [1st Dist.] Dec. 13, 2012, no pet.) (mem. op.) (considering whether parent completed FSP requirements).
In regard to the stability of the proposed placement and the plans for the child, Silva testified that he is doing "very well" with his foster parents who want to adopt him. He is reaching his developmental milestones, has learned to walk, and is learning to speak. The child enjoys playing outside, reading books, and playing with toy cars, blocks, and balls. He attends social outings with his foster parents, who are meeting his needs, medical or otherwise. And DFPS regards his current placement as "a safe and protective home." Silva and Bramlett both opined that it would be in the child's best interest to stay in his current placement and not to be returned to S.O. See TEX. FAM. CODE ANN. § 263.307(a) ("[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest."); In re J.D., 436 S.W.3d at 119-20 ("Stability and permanence are paramount in the upbringing of children."); In re K.C., 219 S.W.3d at 931 (child's need for stable, permanent home paramount consideration in best interest determination); see also In re B.J., 2016 WL 1389054, at *13 (children doing well in their placements and noting positive improvements since entering foster homes); In re. Z.B., 2014, WL 5409103, at *9 (current caregivers could give child permanent home, meet child's physical and medical needs, and offer stability for child).
In contrast, as noted above, S.O. is currently living in a "group home for teen moms." However, according to S.O., she will "age out" of the group home when she is eighteen years old and intends to leave the home at that time, even though she is not sure how she will obtain money to pay for a place to live. Silva opined that if S.O. were to leave the group home, she would not be able to adequately care for the child or provide him with a safe and stable environment because she does not have any familial support and has to care for another child. See In re J.D., 436 S.W.3d at 119-20 ("The fact finder may compare the contrasting plans for a child by the parent and [DFPS] and consider whether the plans and expectations of each party are realistic or weak and ill-defined."); In re Z.B., 2014 WL 5409103, at *10 (considering instability of mother's past and current home).
In regard to acts or omissions that may indicate that the parent-child relationship is not proper, a parent's inability to provide a stable home and failure to comply with her FSP supports a finding that termination of her parental rights is in the best interest of the child. In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.); In re E.A.F., 424 S.W.3d 742, 752 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); see also In re Z.B., 2014 WL 5409103, at *10 (considering mother's failure to complete FSP). As discussed above, there is ample evidence that S.O. is not able to provide a safe and stable home for the child, now and in the future, and she has failed to comply with her FSP.
In regard to any excuse for the acts or omission of S.O., we note that she asserts that her failure to attend school on a daily basis was not her fault, but rather due to the fact that DFPS had not placed her in a "proper schooling environment." However, the record indicates that S.O. had previously told Silva that she missed school because she did not want to go, missed the child, and did not feel well.
S.O. also asserts that she improved her "delinquency issues" in the few months before trial when she attended her summer-school session. However, evidence of improved conduct, especially of short-duration, does not always negate a negative finding. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) ("[E]vidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of . . . irresponsible choices."); In re B.D.M., No. 02-13-00388-CV, 2014 WL 1510131, at *8 (Tex. App.—Fort Worth Apr. 3, 2014, no pet.) (mem. op.) ("[R]ecent improvement alone is not sufficient to avoid termination of parental rights."). And the trial court was not required to believe S.O.'s explanations. See In re Z.B., 2014 WL 5409103, at *10-11 (trial court could have concluded mother's explanations and excuses product of immaturity).
Viewing the evidence in the light most favorable to the trial court's finding, we conclude that the trial court could have formed a firm belief or conviction that termination of S.O.'s parental rights was in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(2). Accordingly, we hold that the evidence is legally sufficient to support the trial court's finding that termination of S.O.'s parental rights was in the best interest of the child. Id.
We note that both S.O. and DFPS assert that the evidence is factually insufficient to support the trial court's finding that termination of S.O.'s parental rights was in the best interest of the child. And DFPS requests that this Court sustain S.O.'s factual-sufficiency challenge.
Reversal is proper where an appellee, including DFPS, confesses error. See In re J.W., No. 13-14-00559-CV, 2016 WL 1316687, at *1-2 (Tex. App.—Corpus Christi Mar. 10, 2016, no pet.) (mem. op.) (DFPS agreed parents' counsel rendered ineffective assistance); Ervin v. Wichita Cty. Family Court Servs., 533 S.W.2d 947, 951 (Tex. Civ. App.—Fort Worth 1976, no writ) (termination-of-parental-rights case, where appellee, Wichita County Family Court Services, admitted mother's complaints of lack of evidence to support judgment well-founded); see also Spencer v. Dextral Cap., LP, No. 05-13-00927-CV, 2015 WL 1951054, at *1 (Tex. App.—Dallas May 1, 2015, no pet.) (mem. op.); McNutt v. Garick Fire Protection, Inc., 225 S.W.3d 657, 657-58 (Tex. App.—El Paso 2006, no pet.); City of Tioga v. Graves, 220 S.W. 1110, 1110 (Tex. Civ. App.—Amarillo 1920, no writ); Mo., K. & T. Ry. Co. of Tex. v. Hodges, 52 S.W. 624, 625 (Tex. Ct. App. 1899) ("It has been the practice of the appellate courts in this state, in civil cases, to give effect to confessions of error . . . .").
Here, DFPS concedes that the evidence is factually insufficient to support the trial court's finding that termination of S.O.'s parental rights was in the best interest of the child. Cf. In re S.A.Y.W., No. 14-16-00280-CV, 2016 WL 4705767, at *5 n.6 (Tex. App.—Houston [14th Dist.] Sept. 8, 2016, pet. denied) (mem. op.) (sustaining parent's sufficiency challenges where DFPS conceded evidence insufficient); In re C.D.E., 391 S.W.3d 287, 298 (Tex. App.—Fort Worth 2012, no pet.) (same). And both S.O. and DFPS have requested that this Court reverse the trial court's judgment terminating S.O.'s parental rights and remand the case for further proceedings in the trial court. Neither party has requested that this Court affirm the trial court's judgment terminating the parent-child relationship. Cf. Ballard v. First Nat'l Bank of Trenton, No. 06-09-00111-CV, 2010 WL 2574036, at *1 (Tex. App.—Texarkana June 29, 2010, no pet.) (mem. op.) (appellate court could not grant relief not requested and "[n]either party . . . requested that th[e] judgment be affirmed."); see also Jay Petroleum, L.L.C. v. EOG Res., Inc., 332 S.W.3d 534, 538 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (court cannot grant relief party has not requested).
Accordingly, because both parties to this appeal assert that the evidence is factually insufficient to support the trial court's best-interest finding and request the same relief, we hold that the evidence is factually insufficient to support the trial court's finding that termination of S.O.'s parental rights was in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(2).
We sustain S.O.'s second issue in part.
Conclusion
We reverse the portion trial court's judgment terminating S.O.'s parental rights and remand the case to the trial court for further proceedings consistent with this opinion.
Our decision does not affect the trial court's appointment of DFPS as the child's managing conservator. See In re J.A.J., 243 S.W.3d 611, 613, 617 (Tex. 2007) (holding reversal of termination judgment does not affect trial court's conservatorship appointment absent assigned error where trial court finds appointing parent as conservator would significantly impair child's physical health or emotional development and appointment of DFPS in child's best interest); In re R.S.D., 446 S.W.3d 816, 822-23, 822 n.5 (Tex. App.—San Antonio 2014, no pet.) (reversing trial court's judgment terminating parental rights but affirming trial court's appointment of DFPS as managing conservator of child where challenge to DFPS's appointment not subsumed within parent's appeal); In re E.W., 494 S.W.3d 287, 302 (Tex. App.—Texarkana 2015, no pet.) (where parents did not contest DFPS's conservatorship appointment, reversal of termination order did not affect conservatorship).
Terry Jennings
Justice Panel consists of Chief Justice Radack and Justices Jennings and Bland.