Opinion
04-21-00220-CV
11-03-2021
IN THE INTEREST OF H.A.J.R., L.R.R., and M.R.R., Children
Do not publish
From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2020-PA-01028 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
Irene Rios, Justice
AFFIRMED
Appellant Mother appeals the trial court's order terminating her parental rights to her children, Henry, Seth, and Amy (collectively "the children"). In her sole issue, Mother challenges the sufficiency of the evidence supporting the trial court's finding that termination was in the children's best interests. We affirm the trial court's order.
To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the parent as "Mother" and "Father" and the children using the pseudonyms "Henry," "Seth," and "Amy." See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2). The trial court's order terminates Mother and Father's parental rights to the children, but only Mother appeals the trial court's order.
Background
The Department of Family and Protective Services ("the Department") became involved in the underlying case on May 19, 2020, when it received a report that Amy, who was five years 04-21-00220-CV old, was unsupervised and wandering in the street in front of Mother's home. The Department was also concerned Mother may be using drugs while the children were under her care and domestic violence occurred in the home.
On May 21, 2020, the Department filed a petition seeking temporary conservatorship of the children and for termination of Mother and Father's parental rights. The trial court granted the Department conservatorship, and the children were ultimately placed in the care of their maternal grandfather who would raise the children with maternal grandmother.
We refer to maternal grandfather as "Grandfather" and maternal grandmother as "Grandmother" (collectively "Grandparents").
The Department implemented a family service plan whereby Mother was required to attend parenting classes, participate in a drug assessment, complete a drug rehab program, participate in random urinalysis and hair follicle testing for drug use, participate in a psychological and psychosocial assessment, attend therapy sessions, and complete a domestic violence class. Mother participated in the psychological, psychosocial, and initial drug assessment, but did not participate in any of the other services required under the family service plan.
On April 15, 2021, the trial court held a bench trial. Mother did not attend the trial. The trial court heard testimony from April Muzquiz, the Department's caseworker. Marco Cabrera, who was appointed to serve in the dual role as attorney ad litem and guardian ad litem for the children, recommended the trial court terminate Mother's parental rights to the children.
The trial court noted that Mother was at a previous hearing where the trial date was set and that Mother had notice of the trial.
On May 5, 2021, the trial court signed an order terminating Mother's parental rights to the children. Specifically, the trial court terminated Mother's parental rights based on statutory grounds (O) and (P) in section 161.001(b)(1) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O), (P). The trial court also found that it was in the children's best interests to terminate Mother's parental rights. See id. § 161.001(b)(2). Mother appeals.
Statutory Requirements and Standard of Review
To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department has the burden to prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interests of the children. TEX. FAM. CODE ANN. § 161.001(b). Clear and convincing evidence requires "proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Id. § 101.007.
When reviewing the sufficiency of the evidence, we apply well-established standards of review. See id. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (conducting a factual sufficiency review); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (conducting a legal sufficiency review).
"In reviewing the legal sufficiency of the evidence to support the termination of parental rights, we must '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.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *2 (Tex. App.-San Antonio Nov. 1, 2017, pet. denied) (mem. op.) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. "A corollary to this requirement is that a [reviewing] court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.
"In reviewing the factual sufficiency of the evidence to support the termination of parental rights, we 'must give due consideration to evidence that the factfinder could reasonably have found 04-21-00220-CV to be clear and convincing.'" J.L.B., 2017 WL 4942855, at *2 (quoting J.F.C., 96 S.W.3d at 266). "A [reviewing court] should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266. "The [reviewing] court must hold the evidence to be factually insufficient if, in light of the entire record, the disputed evidence contrary to the judgment is so significant that a reasonable factfinder could not have resolved that disputed evidence in favor of the ultimate finding." In re M.T.C., No. 04-16-00548-CV, 2017 WL 603634, at *2 (Tex. App.-San Antonio Feb. 15, 2017, no pet.) (mem. op.).
Further, in a bench trial, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. HealthTronics, Inc. v. Lisa Laser USA, Inc., 382 S.W.3d 567, 582 (Tex. App.-Austin 2012, no pet.). This is because "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.-Austin 2014, no pet.) (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.)). We, therefore, defer to the trial court's judgment regarding credibility determinations. Coburn, 433 S.W.3d at 823-24.
Best Interests
Mother argues the evidence is legally and factually insufficient to support a finding that termination of her parental rights was in the children's best interests.
When considering the best interest of a child, we recognize the existence of a strong presumption that the child's best interest is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, we also presume that prompt and permanent placement of the child in a safe environment is in the child's best interest. TEX. FAM. CODE ANN. § 263.307(a). 04-21-00220-CV
In determining whether a parent is willing and able to provide the child with a safe environment, we consider the factors set forth in section 263.307(b) of the Texas Family Code. See id. § 263.307(b). We also consider the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not exhaustive. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). "The absence of evidence about some of these 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. In analyzing these factors, we must focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective &Regul. Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ).
These factors include:
(1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of home placements; (3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial report and intervention by the department; (5) whether the child is fearful of living in or returning to the child's home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child [or] the child's parents . . .; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child's family demonstrates adequate parenting skills . . .; and (13) whether an adequate social support system . . . is available to the child.TEX. FAM. CODE ANN. § 263.307(b).
These factors include: (1) the child's desires; (2) the child's present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child's best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013).
Evidence that proves one or more statutory ground for termination may also constitute evidence illustrating that termination is in the child's best interest. C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). "A best-interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence." See In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). "A trier of fact may measure a parent's future conduct by his past conduct and determine whether termination of parental rights is in the child's best interest." Id.
Emotional and Physical Dangers to the Children
When reviewing a best-interest finding, we consider "whether there is a history of substance abuse by the child's family or others who have access to the child's home[.]" TEX. FAM. CODE ANN. § 263.307(b)(8). "Continued illegal drug use [by the parent] . . . is conduct that jeopardizes parental rights and may be considered as establishing an endangering course of conduct, and that termination is in the best interest of the child." In re D.M.M., No. 14-16-00664-CV, 2017 WL 61847, at *5 (Tex. App.-Houston [14th Dist.] Jan. 5, 2017, pet. denied) (mem. op.). "This court considers a parent's conduct before and after the Department's removal of the children." In re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.-San Antonio 2017, pet. denied).
Muzquiz testified that, one month prior to trial, Mother admitted she was using methamphetamines daily. Therefore, Muzquiz stated, it would be a danger to the children if they were returned to Mother. According to Muzquiz, Mother admitted she is currently living with others who are trying to stay sober. Muzquiz stated she got the sense the home was an unsafe environment based on what Mother told her about others living in the home and because she was not allowed inside the home.
Here, the trial court could have formed a firm conviction or belief that Mother's continued illegal drug use constitutes an emotional and physical danger to the children. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.) ("Parental and caregiver illegal drug 04-21-00220-CV use and drug-related criminal activity likewise supports the conclusion that the children's surroundings endanger their physical or emotional well-being." (citing In re S.D., 980 S.W.2d 758, 763 (Tex. App.-San Antonio 1998, pet. denied))).
Emotional and Physical Needs of the Children and Plans for the Children
"The need for permanence is the paramount consideration for the child's present and future physical and emotional needs." S.J.R.-Z., 537 S.W.3d at 693.
Muzquiz testified Mother is not able to meet the physical and emotional needs of the children because she is unable to change her behaviors and remains under the influence of drugs. In contrast, Muzquiz testified that the children are doing well and thriving with Grandfather. See In re A.M.M., 04-19-00806-CV, 2020 WL 2139308, at *4 (Tex. App.-San Antonio May 6, 2020, pet. denied) (mem. op.) (indicating evidence the child is "thriving in the current placement" in a "stable and nurturing environment with a planned adoption" supported the trial court's bestinterest determination). While Muzquiz admitted the children were bonded with Mother, she also testified that Grandparents are able to meet all of the children's needs and the long-term goal is for the children to be adopted by Grandparents. See In re D.M., 452 S.W.3d 462, 472 (Tex. App.- San Antonio 2014, no pet.) ("The stability of the proposed home environment is an important consideration in determining whether termination is in the child[ren]'s best interest[s].").
Muzquiz testified that Amy has special needs and Grandparents are able to care for her special needs. Muzquiz further stated Amy is receiving occupational therapy and speech therapy at school. See S.D., 980 S.W.2d at 764 (holding it was in the children's best interests to place them "in a stable environment where they can receive proper care for their special needs").
Abilities, Acts, and Omissions of the Parent
Muzquiz testified Mother completed a psychological, psychosocial, and drug assessment, but did not comply with the majority of the recommendations under her family service plan, 04-21-00220-CV including "individual therapy, rehab, and parenting classes." See TEX. FAM. CODE ANN. § 263.307(b)(10), (11) (stating a court should consider the parent's willingness to seek out, accept, and complete counseling services, and effect positive environmental and personal changes when making a best-interest determination). Muzquiz also testified that Mother attempted to detox numerous times throughout the case, but was never successful.
Due to reports of domestic violence in the home, Muzquiz testified Mother was required to take a domestic violence class. While Mother made an appointment for the domestic violence class, she never started the class. According to Muzquiz, all the appropriate referrals for the services on the family service plan were available to Mother; however, Mother chose not to engage in those services. See Holley, 544 S.W.2d at 372 (holding the programs available to assist the parent in promoting the child's best interest and the acts or omissions of the parent are relevant factors in a best-interest determination). Mother did, however, continue to visit the children weekly under the supervision of the Department.
Muzquiz testified Mother indicated she was non-compliant with services because she was concerned the children were not initially placed with a family member. However, Muzquiz also testified that, aside from weekly visits with the children, Mother completely disengaged from the case once the children were placed with Grandfather.
Evidence of Mother's unwillingness to engage in services to address her drug use and the Department's concern for domestic violence supports the trial court's finding that termination of Mother's parental rights is in the best interests of the children.
Having reviewed the record and considered all the evidence in the appropriate light for each standard of review, we conclude the trial court could have formed a firm belief or conviction that termination of Mother's parental rights is in the children's best interests. See TEX. FAM. CODE ANN. § 161.001(b)(2); H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d at 573; see also generally In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (recognizing a reviewing court need not detail the evidence if affirming a termination judgment). Accordingly, we hold the evidence is legally and factually sufficient to support the trial court's best-interest findings.
Mother's first issue is overruled.
Conclusion
The trial court's judgment is affirmed.