Opinion
No. 04-17-00525-CV
12-27-2017
In the Interest of C.H.L., a Child
MEMORANDUM OPINION
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 16-07-0659-CVA
Honorable Melissa Uram-Degerolami, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
This is an appeal from a judgment terminating S.K.L.'s parental rights to her child, C.H.L. In a single issue, S.K.L. argues the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights is in the child's best interest. We affirm.
BACKGROUND
The Texas Department of Family and Protective Services filed an original petition for protection of a child, conservatorship, and termination of parental rights. After a hearing, the trial court removed C.H.L. from her parents' custody because of abuse and neglect, and named the Department her temporary managing conservator. At the time, C.H.L. was seven years old.
Eleven months later, the trial court held a non-jury trial. After hearing the evidence, the trial court terminated S.K.L.'s parental rights and named the Department permanent managing conservator of C.H.L. The trial court found that S.K.L.'s parental rights should be terminated because she (1) knowingly placed or allowed the child to remain in conditions or surroundings which endangered the child's physical or emotional well-being; (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the child's physical or emotional well-being; and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for S.K.L. to obtain the return of the child. See TEX. FAM. CODE ANN. §161.001(b)(1)(D),(E),(O) (West Supp. 2017). The trial court also found that termination of S.K.L.'s parental rights was in the child's best interest. Id. § 161.001(b)(2). S.K.L. appealed.
The trial court also terminated the parental rights of C.H.L.'s father, but he did not appeal.
APPLICABLE LAW AND STANDARDS OF REVIEW
Termination of parental rights under section 161.001 of the Texas Family Code requires proof by clear and convincing evidence of at least one of the grounds listed in section 161.001(b)(1)(A)-(T) and that termination is in the child's best interest. Id. § 161.001(b)(1),(2). Clear and convincing evidence means 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 (West 2014).
In reviewing the legal sufficiency of the evidence in a parental termination case, we consider all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a strong belief or conviction that its finding was true. In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). "To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible." Id. If we conclude that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude the evidence is legally insufficient. Id.
When a parent challenges the factual sufficiency of the evidence on appeal, we look at all the evidence, including disputed or conflicting evidence. In the Interest of J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). 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.
THE EVIDENCE
At trial, a Department supervisor, S.K.L., and a Department caseworker testified.
Department Supervisor
A Department supervisor testified that she had met S.K.L. about a month before the Department had filed its petition in this case. S.K.L. came to the Department's offices and appeared to be under the influence of something. S.K.L. was slurring her words and holding onto the counter to stand up. The supervisor asked S.K.L. if she was taking anything, and S.K.L. said that she had just been to the doctor and had just filled her prescriptions. S.K.L. showed the supervisor her prescription bottles, each of which initially contained sixty pills. The supervisor noticed that too many of the pills were missing. Only fifty pills remained in the alprazolam bottle and only forty pills remained in the acetaminophine/codeine bottle. Based on S.K.L.'s appearance, the supervisor believed that S.K.L. was abusing her prescription medications.
During this meeting, S.K.L. told the supervisor that she and her romantic partners had engaged in domestic violence. According to S.K.L., her relationship with C.H.L.'s father and her relationship with her most recent boyfriend were tainted by domestic violence. S.K.L. said that the violence between her and her most recent boyfriend had occurred while C.H.L. was in her care.
According to the supervisor, the Department considers domestic violence in the home to constitute conditions or surroundings that endanger a child's physical or emotional well-being, whether or not the child actually witnesses the domestic violence. Additionally, the Department considers a parent's drug abuse and criminal activity to constitute conduct that endangers a child's physical or emotional wellbeing, especially if the drug abuse and criminal activity are current or recent. S.K.L.
S.K.L. testified that at the beginning of this case she attended a family-group conference. A service plan was created for S.K.L., and S.K.L. understood what she was expected to do under the service plan. S.K.L. admitted that she had not fully complied with the service plan. S.K.L. had participated in a drug and alcohol assessment and a psychological evaluation, both of which indicated that S.K.L. needed to participate in inpatient drug treatment. However, S.K.L. did not participate in an inpatient or an outpatient drug treatment program. S.K.L. did not complete the domestic violence classes, individual therapy, or the parenting classes as required by her service plan.
According to S.K.L., the last domestic violence incident between her and C.H.L.'s father was three months before trial. S.K.L. claimed that she had sustained injuries in the incident, including a broken nose and "both eye sockets were broken and bleeding."
S.K.L. admitted that the trial court had ordered her to move out of C.H.L.'s father's home at the beginning of the case. Nevertheless, S.K.L. acknowledged that she had lived with C.H.L.'s father "back and forth" during the course of the case. S.K.L. indicated that she and her most recent boyfriend had lived with C.H.L.'s father, but she insisted that it was not her decision. Later in her testimony, S.K.L. denied that she had resided with C.H.L.'s father during this case, claiming that she had only visited his home.
S.K.L. was arrested twice while this case was pending: once for criminal trespass and once for public intoxication. S.K.L. claimed that the criminal trespass charge had been dismissed, but she did not provide the Department with any documentation to prove it. S.K.L. and C.H.L.'s father were arrested for criminal trespass at the same time. S.K.L. admitted that, prior to the filing of this case, she had been incarcerated for nine months. S.K.L. denied that C.H.L.'s father had cared for C.H.L. during S.K.L's incarceration, claiming that her neighbors had cared for C.H.L. while S.K.L. was away.
S.K.L. had used illicit drugs while the case was pending. S.K.L. admitted that the last time she had used methamphetamines was two or three months before trial.
In response to the Department's claim that S.K.L. had taken too many of her prescription pills, S.K.L. claimed that some of her pills were missing because someone had taken them from her.
S.K.L. claimed that she was receiving treatment for several medical problems, including fibromyalgia, sciatic nerve, and arthritis and bursitis in her hips. Her doctor had recently changed one of her prescription medications, a muscle relaxer, from a narcotic to a non-narcotic. S.K.L. asserted that she always takes her medications as prescribed. S.K.L. further asserted that she had taken her medications as prescribed on the day of trial. S.K.L. denied that she was under the influence while testifying at trial.
S.K.L. claimed that she was currently residing in her best friend's home in Crockett, Texas. S.K.L. had known this friend for forty-five years. The home had a room for her and a room for C.H.L. S.K.L. felt safe there. According to S.K.L., C.H.L.'s father prevented her from moving in the past because he had threatened to take C.H.L. and go to Mexico. Since moving to Crockett, S.K.L. had attended nine NA/AA meetings and one counseling session. S.K.L. claimed to be on a waiting list for an outpatient drug treatment program. S.K.L. indicated that the reason she could not participate in an inpatient drug treatment program was because she needed to resolve her criminal cases. S.K.L. claimed that she was now ready to go to an inpatient drug treatment program because her criminal cases had been resolved.
S.K.L. told the trial court that she did not want her parental rights terminated because she would like to continue to have a relationship with C.H.L. S.K.L. emphasized that she had been consistent in visiting with C.H.L. while this case was pending. In fact, S.K.L. had participated in a one-hour visit with C.H.L. the week before trial. According to S.K.L., it was in C.H.L.'s best interest for S.K.L. to continue to have a relationship with C.H.L. because S.K.L. was C.H.L.'s mother and they loved each other.
S.K.L. asked the trial court to give her an extension to complete her service plan. S.K.L. explained that she was settled now. S.K.L had moved all of her things and C.H.L.'s things to her friend's home in Crockett. S.K.L. said she could not accomplish her service plan while she was in Atascosa County. S.K.L. said that she and C.H.L.'s father could not be in the same town and that is why she had moved away. Finally, S.K.L. told the trial court, "I will get into rehab, day rehab, night rehab, inpatient, outpatient, whatever I have to do to get my daughter back."
Department Caseworker
A Department caseworker testified that S.K.L.'s service plan was court-ordered and S.K.L. understood the plan's contents. S.K.L. had been given opportunities to go to both inpatient and outpatient drug treatment during the course of this case. S.K.L. had not taken advantage of these opportunities. S.K.L. had not demonstrated any changes in her behavior or lifestyle over the course of this case, nor had she made any real progress on any of the services in her service plan. S.K.L. had not demonstrated the ability to provide C.H.L. with a safe, stable, drug-free, violence-free home. S.K.L. was not able to provide for any of C.H.L.'s needs at this time. The caseworker felt that if C.H.L. was returned to S.K.L. now, the home environment would be no different than it was at the time of C.H.L.'s removal.
According to the caseworker, C.H.L.'s father claimed that he was the victim of domestic violence perpetrated by S.K.L. While this case was pending, S.K.L. and her current boyfriend had lived in C.H.L.'s father's home. C.H.L.'s father had told S.K.L. that he did not want her boyfriend living in his home. The caseworker felt that S.K.L. and her boyfriend were taking advantage of C.H.L.'s father.
A courtesy caseworker had tried to contact S.K.L. in Crockett to observe the home where S.K.L. claimed to be residing. The courtesy caseworker was unsuccessful in making face-to-face contact with S.K.L. because S.K.L. was still residing in Atascosa County.
At the beginning of the case, the caseworker talked to C.H.L. about why the Department was involved. The caseworker explained to C.H.L. that her parents had up to a year to complete their services, which included attending classes. The caseworker also explained to C.H.L. that if her parents did not complete their services and change their lifestyles, then C.H.L. might not be able to go back home. C.H.L. seemed to understand.
About four months before trial, the caseworker asked C.H.L. if she would feel safe living with her mother or father. C.H.L. said that she did not feel safe with S.K.L. because of S.K.L.'s boyfriend. C.H.L. told the caseworker that she was afraid of S.K.L.'s boyfriend because he and S.K.L. fought a lot and he hit S.K.L. C.H.L. said she had seen S.K.L.'s boyfriend hit S.K.L. The caseworker did not ask C.H.L. if she wanted to go back to live with her mother and father. However, the caseworker assumed that C.H.L. would want to go back to live with her parents. The caseworker based this assumption on C.H.L.'s interactions with her parents and the general tendency of children to want to be with their parents. The caseworker did not think that returning C.H.L. to her parents would be in her best interest.
C.H.L. was currently living with her godparents. The Department had made efforts to find a relative placement for C.H.L. On several occasions, the caseworker had asked S.K.L to recommend family members or friends who might be considered for a permanent placement for C.H.L. S.K.L. did not respond to these requests. The Department did consider placing C.H.L. with one of her father's relatives. The relative had passed a home study. However, the relative expressed concerns about providing a long-term placement for C.H.L. because of the "drama" and domestic violence between S.K.L. and C.H.L.'s father. The relative felt that if he provided C.H.L. a long-term placement, S.K.L. and C.H.L.'s father would always be harassing them and C.H.L. would not be able to have the normal childhood she deserved. According to the caseworker, "some sort of normalcy" was in C.H.L.'s best interest. The Department's permanency goal for C.H.L. was adoption by a non-relative.
BEST INTEREST FINDING
S.K.L. argues the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights is in C.H.L.'s best interest. In evaluating the child's best interest, courts consider the factors articulated in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (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 for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.
A best-interest analysis may consider direct and circumstantial evidence, subjective factors, and the totality of the evidence. In the Interest of E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). Evidence proving acts or omissions under section 161.001(b)(1) of the Texas Family Code may be probative of the child's best interest. In the Interest of C.H., 89 S.W.3d 17, 28 (Tex. 2002).
The mere fact that an act or omission occurred in the past does not ipso facto prove that termination is currently in the child's best interest. In the Interest of O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.). However, a court can measure a parent's future conduct by her past conduct to determine if termination is in the child's best interest. Id.
Here, S.K.L.'s primary complaint is that the evidence concerning several of the Holley factors is either nonexistent or deficient. In particular, S.K.L. points to the lack of evidence concerning C.H.L.'s physical needs now and in the future and the Department's plans for C.H.L.'s future. S.K.L. further complains that evidence of C.H.L.'s desires was only briefly mentioned.
A best-interest finding does not require evidence concerning each and every Holley factor. As the Texas Supreme Court has recognized: "[W]e have never held that [the Holley] considerations are exhaustive or that all such considerations must be proved as a condition precedent to parental termination." (emphasis in original). C.H., 89 S.W.3d at 27. "The absence of evidence about some of [the Holley] 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. Therefore, while we will consider S.K.L.'s complaint about the purported lack of evidence of particular Holley factors, the ultimate question before us is whether the evidence, as a whole, is sufficient for the trial court to have formed a strong conviction or belief that termination of S.K.L.'s parental rights was in C.H.L.'s best interest. See id.
Desires of the Child
With respect to this factor, S.K.L. argues that C.H.L.'s desires were only briefly mentioned. As previously stated, the Department was not required to present evidence concerning each and every Holley factor. See id. at 27. S.K.L. further argues that when C.H.L.'s desires were mentioned at trial "it was clear that the child did not want [S.K.L.'s] rights terminated." The caseworker testified that she had not asked C.H.L. if she wanted to return home to live with her parents; however, she believed that C.H.L. would want to live with her parents. Based on the evidence, this factor weighs against the best-interest finding.
Emotional and Physical Needs of the Child Now and in the Future
S.K.L. complains that no evidence was presented concerning C.H.L.'s present and future physical needs. We disagree. Some evidence was presented as to this factor, which encompasses both the emotional and physical needs of the child. A Department supervisor testified that a parent's engagement in domestic violence, drug abuse, and criminal activity endanger a child's physical and emotional well-being. A Department caseworker testified that C.H.L. had witnessed domestic violence between S.K.L. and her boyfriend and C.H.L. did not feel safe with S.K.L. because of her boyfriend. From this evidence, the trial court could have inferred that C.H.L.'s current and future emotional and physical needs called for C.H.L. to be free from exposure to her parent's engagement in domestic violence, drug abuse, and criminal activity.
Furthermore, the evidence showed that C.H.L. was removed from S.K.L.'s home in part because S.K.L. was abusing drugs and engaging in domestic violence. During the eleven months that the case was pending, S.K.L. had failed to address these issues. In fact, S.K.L. admitted to using methamphetamines just two or three months before trial and to new domestic violence incidents. Additionally, S.K.L. acquired two new criminal charges. In light of S.K.L.'s failure to address these issues, the trial court could have inferred that S.K.L. would be unable to meet C.H.L.'s physical and emotional needs now and in the future. Based on the evidence, this factor weighs in favor of the best-interest finding.
Emotional and Physical Danger to the Child Now and in the Future
S.K.L. does not argue that the evidence was lacking as to the emotional and physical danger to C.H.L. now and in the future. As to this factor, the evidence showed that S.K.L. had long-time drug problems and domestic violence issues that had endangered C.H.L.'s emotional and physical well-being in the past. S.K.L. continued to abuse drugs (both illicit and prescription) and continued to remain in volatile relationships while this case was pending. Two additional criminal charges were filed against S.K.L. while this case was pending. As to this factor, the trial court could have measured S.K.L.'s future conduct by her past and current conduct and determined that S.K.L. presented a physical and emotional danger to C.H.L. now and in the future. See O.N.H., 401 S.W.3d at 684; In the Interest of D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.) ("A factfinder may infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent.").
Moreover, S.K.L. does not challenge the trial court's findings that she (1) knowingly placed or allowed C.H.L. to remain in conditions or surroundings which endangered her physical or emotional well-being, (2) engaged in conduct or knowingly placed C.H.L. with persons who engaged in conduct which endangered her physical or emotional well-being, and (3) that she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain return of C.H.L. The evidence supporting these findings is also probative with regard to C.H.L.'s best interest. See C.H., 89 S.W.3d at 28. Based on the evidence, this factor weighs in favor of the best-interest finding.
Parent's Acts or Omissions Indicating the Parent-Child Relationship is Not a Proper One/Excuses for the Acts or Omissions
S.K.L. does not argue that the evidence concerning this factor is lacking. The evidence showed multiple acts or omissions indicating that S.K.L.'s relationship with C.H.L. was not a proper one. First, S.K.L. was not able to care for C.H.L. for a nine-month period while she was incarcerated. Second, S.K.L. allowed C.H.L. to witness multiple incidents of domestic violence. Third, S.K.L. used illicit drugs and abused her prescription medications before and after this case was filed. Fourth, even though S.K.L. understood that the completion of the service plan was necessary for C.H.L. to be returned to her, S.K.L. failed to complete the service plan. Finally, S.K.L. harassed relatives who were caring for C.H.L. or were considering caring for C.H.L. in the long term.
As to excuses for her acts or omissions, S.K.L. claimed that she was precluded from participating in inpatient drug treatment because she had to resolve her two criminal cases. However, the trial court was not required to accept this as a valid excuse. Instead, the trial court could have reasonably concluded that S.K.L.'s acquisition of two new criminal charges while this case was pending was further evidence indicating that S.K.L. was unable to control her own behavior, make good decisions, and place C.H.L.'s needs above her own. Additionally, S.K.L. suggested that C.H.L.'s father was somehow to blame for her failure to participate in services. S.K.L. testified that she was unable to complete her service plan while she was in the same town as C.H.L.'s father. But the trial court was not required to give weight to this testimony, especially in light of the other evidence presented in this case. Based on the evidence, these factors weigh in favor of the best-interest finding.
Parental Abilities of the Individuals Seeking Custody/Programs Available to Assist
The trial court could have determined that S.K.L. had poor parental abilities. Before the Department's case was filed, S.K.L. had engaged in criminal conduct. S.K.L. acknowledged that she had been incarcerated for nine months. S.K.L. claimed that while she was incarcerated neighbors had cared for C.H.L. Later, C.H.L. was removed from S.K.L.'s care because of S.K.L.'s drug abuse and engagement in domestic violence. C.H.L. had witnessed some of this domestic violence and it had affected C.H.L.
After C.H.L.'s removal, S.K.L. was provided with a service plan that addressed S.K.L.'s drug abuse and the domestic violence. S.K.L. knew that she was required to complete the service plan to obtain reunification with C.H.L., but S.K.L. nevertheless failed to complete key components of the plan. S.K.L. did not complete an inpatient drug treatment program, domestic violence classes, individual therapy, and parenting classes. Furthermore, S.K.L. continued to abuse drugs, engage in domestic violence, and accumulate new criminal charges. From this evidence, the trial court could have inferred that S.K.L. was not motivated to improve her parental abilities. Based on the evidence, these factors weigh in favor of the best-interest finding.
Plans for the Child by the Individuals or the Agency Seeking Custody/Stability of the Home or Proposed Placement
S.K.L. complains that the Department offered "absolutely no plan for the child's future should the termination" "be granted." We disagree. The evidence showed that the Department's plan for C.H.L. was adoption by a non-relative. The caseworker explained that the Department initially pursued a different plan for C.H.L.—permanent placement with a relative—but this plan was abandoned at least in part because of S.K.L.'s lack of cooperation and harassing behavior.
In arguing that these factors weigh in her favor, S.K.L. argues that she presented evidence indicating that she now has a stable home where she lives with a long-time friend. However, apart from stating that the home had a bedroom for S.K.L. and a bedroom for C.H.L., that their personal items had been moved there, and that S.K.L. felt safe there, S.K.L. provided no details about the home. Furthermore, the evidence showed that no one from the Department had ever visited the home. A Department caseworker tried to contact S.K.L. to visit the home, but was never able to make face-to-face contact with S.K.L. But even assuming that S.K.L. had obtained a secure, appropriate home for C.H.L. in another town, the trial court could have concluded that S.K.L. made these efforts too late. For most of the time this case was pending, S.K.L. was not trying to create a safe environment for C.H.L., but was continuing to participate in the same behavior that had prompted the Department's involvement in this case in the first place. In light of S.K.L.'s belated efforts and her failure to address her underlying issues, the trial court could have doubted that S.K.L. would be able to maintain a secure, stable home for C.H.L. in the long term. Based on the evidence, these factors weigh in favor of the best-interest finding.
Although the evidence indicated that the first factor—the desires of the child—weighed against the best-interest finding, all of the remaining factors weighed in favor of the best-interest finding. Reviewing the evidence in the light most favorable to the trial court's ruling, we conclude that a reasonable factfinder could have formed a firm belief or conviction that termination of S.K.L.'s parental rights was in C.H.L.'s best interest. Furthermore, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding was not so significant that a factfinder could not have formed a firm belief or conviction that termination of S.K.L.'s parental rights was in C.H.L.'s best interest. We conclude the evidence is legally and factually sufficient to support the trial court's judgment.
CONCLUSION
The trial court's judgment is affirmed.
Karen Angelini, Justice