Opinion
No. 04-17-00757-CV
04-18-2018
IN THE INTEREST OF D.E.M., A.F.G., Jr., M.L.R.G., K.E.G., and A.G., Children
MEMORANDUM OPINION
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-02236
Honorable Angelica Jimenez, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice AFFIRMED
Annabelle appeals the trial court's termination of her parental rights to her children, D.E.M. (born in 2009), A.F.G., Jr. (born in 2010), M.L.R.G. (born in 2012), K.E.G. (born in 2015), and A.G. (born in 2016). Armando appeals the judgment as to his children, A.F.G., Jr., K.E.G., and A.G. They argue there is legally and factually insufficient evidence to support the trial court's findings that termination of their parental rights is in the children's best interest. We affirm the trial court's judgment.
To protect the identity of minor children in an appeal from an order terminating parental rights, parents are referred to by their first names and children are referred to by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
BACKGROUND
The Department of Family and Protective Services filed an original petition for conservatorship of A.G. and to terminate Annabelle's and Armando's parental rights to A.G. The Department obtained temporary conservatorship of A.G. based on allegations of neglect by Annabelle and Armando. The Department's affidavit in support of removal of A.G. stated that when Annabelle gave birth to A.G., A.G. tested positive for marijuana and Annabelle tested positive for marijuana and benzodiazepines. When A.G. was ready for discharge from the hospital, Annabelle and Armando were not at the hospital and they did not return to the hospital for over a month. The trial court ordered Annabelle and Armando to complete services included in their family service plans.
The Department subsequently amended its petition, requesting conservatorship of Annabelle's and Armando's four other children, D.E.M., A.F.G., Jr., M.L.R.G., and K.E.G., and seeking termination of their parental rights as to those children. The Department obtained temporary conservatorship of the children based on allegations of continued drug use. The children were placed in three separate foster homes pending the trial in this case.
The case proceeded to a bench trial at which several witnesses testified, including Annabelle; a CASA volunteer; Department caseworkers Veronica Ewing and Eletheia Hill; A.G. & K.E.G.'s foster mother, Alicia; and Diana Mitchell, who is a drug and parenting program director at Alpha Home. Generally, the witnesses' testimony showed continued marijuana use by Annabelle; Armando's failure to take drug tests during the case; unsanitary home conditions; Annabelle and Armando's failure to complete required services and to provide proof of employment and that they had safe and stable housing; and some of the children's specific health needs. The trial lasted three days. During a recess on the afternoon of the third day, Armando and Annabelle left the courthouse and did not return for the end of trial. According to Alicia, Armando said to her, "Give my kids a good life," to which she responded "yes, sir."
After trial, the trial court signed a judgment terminating both Annabelle's and Armando's parental rights to the children. The trial court found Annabelle and Armando had knowingly endangered the children based on their conduct and drug use and failed to comply with court-ordered provisions of the family service plans. The trial court also found termination of their parental rights is in the children's best interest. Annabelle and Armando timely appealed, and argue only that there is legally and factually insufficient evidence that termination of their parental rights is in the children's best interest.
STANDARD OF REVIEW
A judgment terminating parental rights must be supported by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017). To determine whether this heightened burden of proof was met, we employ a heightened standard of review to determine 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). "This standard guards the constitutional interests implicated by termination, while retaining the deference an appellate court must have for the factfinder's role." In re O.N.H., 401 S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.). We do not reweigh issues of witness credibility but defer to the factfinder's reasonable credibility determinations. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
A legal sufficiency review requires us to examine 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 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could have done so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. When conducting a factual sufficiency review, we evaluate "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." Id. The evidence is factually insufficient "[i]f, 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." Id.
CHILDREN'S BEST INTEREST
The best-interest determination is a wide-ranging inquiry, and the Texas Supreme Court has set out some factors relevant to the determination:
• the desires of the child;Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The list is not exhaustive, and not every factor must be proved to find that termination is in the child's best interest. In re C.H., 89 S.W.3d at 27. Evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest—especially when undisputed evidence shows that the parental relationship endangered the child's safety. Id. "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." In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.).
• the emotional and physical needs of the child now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the best interest of the child;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
• any excuse for the acts or omissions of the parent.
Although there is no direct evidence regarding the children's desires, not every factor must be proved before the trial court may find that termination is in a child's best interest. See In re C.H., 89 S.W.3d at 27. We must also consider acts and omissions indicating the parent-child relationship is not a proper one. See Holley, 544 S.W.2d at 372. Ewing testified that after A.G. was born, Annabelle and Armando left A.G. at the hospital and did not visit A.G. for over a month. Annabelle testified that the children missed several weeks of school at the beginning of a school year because she failed to timely enroll the children, and they missed several other days of school due to the lack of transportation. Annabelle and Armando also left in the middle of trial and did not return to respond to the Department's evidence against them.
The evidence shows Annabelle repeatedly used marijuana in a manner that harmed the children. See In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) ("A parent's drug use supports a finding that termination is in the best interest of the child."). Caseworker Ewing testified about the drug-related referrals leading to this suit and the removal of the children. Annabelle admitted she used marijuana and benzodiazepines shortly before A.G. was born because she was in pain and did not have any pain medication. K.E.G. now suffers respiratory problems because Annabelle used marijuana when she was pregnant with K.E.G. Although the Alpha Home program director Mitchell testified Armando completed the parenting and drug education program, caseworker Hill stated Armando refused to submit to drug tests during the six months before trial. The trial court could have reasonably inferred from Armando's failure to submit to court-ordered drug tests that he was avoiding testing because he was using illegal drugs. See In re E.R.W., 528 S.W.3d 251, 265 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also In re L.G.R., 498 S.W.3d at 204.
The evidence also shows Armando had unresolved anger issues. In re S.S., No. 04-17-00072-CV, 2017 WL 3044586, at *1, *4 (Tex. App.—San Antonio July 19, 2017, pet. denied) (mem. op.) (considering unresolved anger issues and outbursts in best-interest determination). The CASA volunteer testified that during several of his visits with the children, Armando was not able to control his emotions. The CASA volunteer and caseworker Hill both described a meeting with Armando and Annabelle; Armando became upset with Annabelle because Annabelle was "messing things up" and "basically told [Annabelle] to be quiet" and told Hill not to ask Annabelle any questions. According to Hill, after she reminded Armando that Annabelle was also part of the case, Armando cursed at her and left the meeting. Hill stated that during one of the parent-child visits, Armando had an angry outburst and threw toys off of the shelves and also threw a jar of baby food against the wall.
Furthermore, Ewing testified that when the children were living with Annabelle and Armando, the home was unsanitary because the walls and mattresses were dirty, there were bugs in the home, and Armando apparently used a urinal that was on his dresser and he had left urine in the urinal. See In re M.N.Y.-M., No. 04-16-00047-CV, 2016 WL 2936343, at *4 (Tex. App.—San Antonio May 18, 2016, pet. denied) (mem. op.) (considering an unsanitary home as relevant to a best-interest finding). Hill and the CASA volunteer testified Annabelle and Armando failed to complete their family service plans, which were designed to help them address their drug use and parenting issues. Annabelle and Armando also did not provide proof of safe and stable housing as required by their family service plans. See In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.) (noting failure to comply with family service plan may support finding that termination is in child's best interest).
Annabelle and Armando note there is evidence showing the children are bonded with each other, they are currently placed in three different foster homes, and the Department does not have plans to reunite the children with each other. But having reviewed all of the evidence at trial, we conclude the trial court could have reasonably formed a firm belief or conviction that termination of Annabelle's and Armando's parental rights is in the children's best interest. We hold that legally and factually sufficient evidence supports the trial court's best-interest findings. See In re J.F.C., 96 S.W.3d at 266.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice