Opinion
NO. 14-17-00707-CV
02-15-2018
IN THE INTEREST OF J.C., A CHILD
On Appeal from the 313th District Court Harris County, Texas
Trial Court Cause No. 2016-01966J
MEMORANDUM OPINION
Appellant, J.C. (Father), appeals the trial court's decree terminating his parental rights and appointing the Department of Family and Protective Services as sole managing conservator of the child, J.C. (John). Father contends that the evidence is insufficient to support the trial court's findings (1) related to the predicate grounds on which his parental rights were terminated; (2) that termination was in John's best interest; and (3) appointing the Department as managing conservator. We affirm.
We use pseudonyms to refer to the child in this case. See Tex. Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8.
BACKGROUND
A. The Department's Investigation
The Department received a referral concerning John on January 8, 2016, four days after he was born. The referral alleged that Mother experienced domestic violence with Father while in the hospital which led to Father's arrest. The referral also stated that Father took John into the hall without John being in his crib on several different occasions and attempted to leave the hospital with John.
During the Department's investigation, Mother stated when Father first arrived at the hospital after John's birth, he was normal and sober. The following day he left to run an errand and when he returned Mother thought something was different. Mother stated Father got mad at her for not putting his name on John's birth certificate and it escalated into an argument. Mother stated Father grabbed her by the neck when she was using the restroom. She denied being choked, stating she had been choked by him before and this was not the same thing. Mother indicated the soreness was on the back of her neck. She stated Father also called her derogatory terms.
Regarding the allegations that Father was trying to leave the hospital with John, Mother stated Father took the baby in the hall, without the crib, in contradiction to the nurse's instructions. Mother denied thinking he was trying to leave with John because he could not leave without a ride.
The Department investigator spoke with Father. Father stated he did not choke Mother, but admitted to grabbing her by the neck and calling her derogatory terms. Father stated he felt like Mother was trying to take John away from him. He believes Mother did not put his name on the birth certificate so that he could not have John.
Father denied trying to kidnap John from the hospital. He stated that there was no one there to pick him up so he would not have been able to leave with John. Father stated his actions were an attempt to "get at" the hospital staff because he was upset with the way things were going.
At the time of the investigation, Father remained incarcerated as a result of the domestic violence incident at the hospital. Mother stated she still had contact with Father. Mother stated Father calls her and sometimes the calls make her scared because he threatens her. Father also stated he calls Mother and she takes his calls, but will hang up if he gets angry. Father stated it was Mother's fault he was in jail and sometimes they argue about it. Father denied meaning to scare Mother or make her feel threatened.
B. Trial Proceedings
On April 4, 2016, the Department filed a petition for conservatorship and termination in a suit affecting the parent-child relationship. The Department sought to be appointed sole managing conservator and termination of Mother's and Father's parental rights to John if reunification could not be achieved.
During the pendency of the trial court proceedings, the Department was appointed temporary managing conservator of John. Father filed a petition to adjudicate parentage. In his petition Father admitted he was John's biological father. Father was adjudicated as father of John on September 7, 2016 after completing a DNA test.
The Department prepared a family service plan for both Mother and Father. Father's service plan required that he: complete DNA testing to establish paternity; participate in the batterer's intervention prevention program; complete a psychosocial assessment; participate in parent-child visitation; complete parenting classes; maintain stable housing and employment for six months; complete individual therapy; complete a drug and alcohol assessment; participate in random drug and alcohol testing; and refrain from illegal criminal activity. Father acknowledged receipt of his service plan while incarcerated.
Evidence about Father
During the trial, testimony was offered regarding the incident between Mother and Father at the hospital after John's birth. Father testified he had been out of jail for four days prior to the incident. Mother testified Father visited her in the hospital the evening John was born. The next day he left to run errands and upon his return Mother thought he seemed agitated. Mother stated Father was upset because he did not think his name would be on the birth certificate.
A nurse from the hospital testified that she heard Mother yelling and went into the room. Mother was observed crying and asking Father to leave. The nurse called a code grey, used for the safety of patients and staff, because Father would not leave after being asked to by Mother and the nurse. After Father was removed from the room, the nurse noted Mother was disheveled and upset. The nurse also noted that Mother had redness around the base of her neck which was not present during her assessment that morning. Mother's brother (Uncle) testified that Mother referred to the hospital incident as a choking incident.
Mother testified she and Father began dating in January 2015. Mother stated the incident at the hospital was not the first time Father had attacked her. One such incident was on July 25. Mother found out she was pregnant with John when she went to get checked out because of the assault. Mother testified Father was unable to attend prenatal care with her because he was incarcerated as a result of this assault of her.
Mother went to live with Uncle and his family after the birth of John. Uncle testified that Mother's and Father's relationship was very negative. Mother expressed concerns to Uncle about Father's drug use, anger, and manipulation.
Uncle stated Mother was in contact with Father on the phone all the time. Mother admitted to continued contact with Father while he was in jail and that she put money into Father's commissary account. Mother testified she spoke to Father because he was unable to get information about John from the Department. Mother testified she does not want a relationship with Father, but thinks it is ok to have contact with him about John. Mother and Father testified they are not currently in a relationship.
Father testified he is currently incarcerated. He admitted to having a history of assaults, including multiple assaults of Mother. Father stated he did not know she was pregnant when he assaulted her July 25. Father admitted to the assault following John's birth and stated he was convicted of assault as a result of that incident. Father testified he has no other assault convictions.
Father agreed he had been arrested "a couple of dozen times," but did not know the exact number. Father testified he had been in and out of prison for 12 years. Documentary evidence from five criminal convictions was offered into evidence, including two related to the assault of Mother.
Father testified he has not financially supported John since John was placed into the Department's care. Father agreed he could not provide a safe and stable environment for John. The Department caseworker testified that Father was unable to meet John's physical and emotional needs and has not shown good parenting abilities due to his engaging in illegal substances and activities.
Father testified seeing his son had a profound effect on him, although he admitted he assaulted Mother shortly after first meeting his son. He testified he has been 19 months without mind altering substances and practices a "set of spiritual principles" which allow him to maintain sobriety. Father hopes to provide a stable home for his son and raise him upon his release from prison.
Evidence about John
The Department caseworker testified that John is currently placed with Mother's mother (Grandmother). She stated John is doing extremely well and his emotional and physical needs are being met. The child advocate also testified that John's current placement is in his best interest. Grandmother has expressed an interest in adopting John.
Father and Mother testified as to concerns with the child's current placement. They testified that Grandmother has extreme religious beliefs which raise concerns of emotional abuse. Examples Mother gave were Grandmother refusing to allow them to celebrate Christmas and praying over Mother when she was sick as opposed to taking her to the doctor. The caseworker testified that she has not seen signs of extreme religious beliefs with Grandmother. She stated Grandmother has accepted gifts for John and takes him to the doctor outside of normal checkups. The child advocate also testified he has not witnessed extreme religious practices.
On August 17, 2017, the trial court signed a final decree finding that termination of Father's parental rights was in the best interest of John and terminating Father's parental rights under section 161.001(b)(1)(D), (E), and (O). The decree appointed the Department as sole managing conservator of the child. This appeal followed.
Mother has not appealed the termination of her parental rights which were also terminated.
ANALYSIS
Parental rights can be terminated upon proof by clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(b)(1) of the Family Code; and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2016); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
A. Standard of Review
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Although parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) ("Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.").
Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to the clear and convincing evidence standard. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "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 re J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
In reviewing the legal sufficiency of the evidence in a parental termination case, we must consider all the evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266. We assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence that a reasonable fact finder could have disbelieved. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.
In reviewing the factual sufficiency of the evidence, we consider and weigh all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d at 345. "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. We give due deference to the fact finder's findings and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The fact finder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109.
B. Predicate Termination Grounds
Father challenges the legal and factual sufficiency of the evidence supporting the trial court's judgment terminating his parental rights to John under sections 161.001(b)(1)(D), (E), and (O). Only 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. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We first evaluate whether termination was proper under section 161.001(b)(1)(E).
Termination may be ordered under subsection E, if the trial court finds by clear and convincing evidence that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(E). Under subsection E, the relevant inquiry is whether evidence exists that the endangerment of the child's physical and emotional well-being was the direct result of the parent's conduct, including acts, omissions, or failures to act. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). In this context, endanger means "to expose to loss or injury; to jeopardize." In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.) (quoting In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam)).
Termination under subsection E must be based on more than a single act or omission—the evidence must demonstrate a voluntary, deliberate, and conscious course of conduct by the parent. In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no pet.). "Although 'endanger' means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury." In re T.N., 180 S.W.3d at 383; see also In re J.O.A., 283 S.W.3d at 345 (holding that endangering conduct is not limited to actions directed toward the child). Further, the conduct need not occur in the child's presence. Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Danger to the child's well-being may be inferred from parental misconduct alone, and courts may look at parental conduct both before and after the child's birth. In re J.O.A., 283 S.W.3d at 345.
Father contends the evidence of his criminal history, drug usage, and the isolated incident at the hospital is insufficient to support the trial court's finding. He contends this evidence does not show a voluntary and deliberate course of conduct. He describes the contention that he will continue engaging in criminal acts and drug usage as "pure speculation." The Department contends that Father's behavior at the hospital was not an isolated incident, but rather a part of Father's lengthy criminal history. The Department contends the evidence of his criminal conduct and resulting incarcerations supports a determination that he endangered the health and well-being of John.
As a general rule, subjecting a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. See In re J.O.A., 283 S.W.3d at 345. Evidence of criminal conduct, convictions, and imprisonment may support a finding of a course of conduct which endangers the physical and emotional well-being of a child. See In re A.R.M., No. 14-13-01039-CV, 2014 WL 1390285, at *8 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.); In re C.A.B., 289 S.W.3d at 886. Further, "'[d]omestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment.'" In re S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Father has been incarcerated since shortly after John's birth due to his assault on Mother in the hospital after John was born. This assault in the hospital occurred four days after Father was released from prison for other criminal violations. Additionally, evidence was presented that Father has assaulted Mother in the past, including when she was three-months pregnant.
While the majority of the evidence related to Father's criminal history and drug use predated John's birth, the trial court was able to consider this evidence in connection with subsection E. See In re J.O.A., 283 S.W.3d at 345. The evidence presented at trial established that Father had a history of criminal acts which led to incarceration for various periods of time over a 12 year span. The evidence also established Father had a history of using methamphetamine. Due to his current incarceration, Father admitted he cannot presently provide John with a safe and stable home.
Father testified he has been free of mind-altering drugs during his incarceration over the 19 months before trial. Additionally, Father testified that having a son has had a profound effect on him, and he has adopted a set of spiritual principles to enable him to maintain sobriety and not make further mistakes. It is unknown if these improvements will sustain themselves upon Father's release. However, improved conduct of a short duration will not conclusively negate the probative value of Father's criminal history and drug use. See In re J.O.A., 283 S.W.3d at 346. Additionally, the trial court was presented with the evidence that Father assaulted Mother even after the birth of John.
Reviewing all the evidence in the light most favorable to the termination findings under subsection E, we conclude a reasonable fact finder could have formed a firm belief or conviction as to the truth of the findings that Father endangered John through his acts or omissions. See In re J.O.A., 283 S.W.3d at 344. Further, in view of the entire record, we conclude the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that termination of Father's parental rights was warranted under section 161.001(b)(1)(E). Id. at 345. Accordingly, we conclude the evidence is legally and factually sufficient to support the section 161.001(b)(1)(E) finding. See In re C.A.B., 289 S.W.3d at 886-87. We overrule Father's first issue.
Having concluded that the evidence is legally and factually sufficient to support the trial court's finding of endangerment under section 161.001(b)(1)(E), we need not discuss Father's challenge to the court's finding under sections 161.001(b)(1)(D) and (O). See In re A.V., 113 S.W.3d at 362. We overrule Father's first and second issues.
C. Best Interest of the Child
We review the entire record in deciding a challenge to the court's best-interest finding. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that the best interest of a child is served by keeping the child with his or her natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A., 374 S.W.3d at 533. Prompt and permanent placement of the child in a safe environment is also presumed to be in the child's best interest. Tex. Fam. Code Ann. § 263.307(a) (West Supp. 2016).
Courts may consider the following nonexclusive factors in reviewing the sufficiency of the evidence to support the best interest finding, including: the desires of the child; the present and future physical and emotional needs of the child; the present and future emotional and physical danger to the child; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the child; the plans for the child by the individuals or agency seeking custody; the stability of the home or proposed placement; acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); see also Tex. Fam. Code Ann. § 263.307(b) (West Supp. 2016) (listing factors to consider in evaluating parents' willingness and ability to provide the child with a safe environment). This list is not exhaustive, and evidence is not required on all of the factors to support a finding terminating parental rights. Id.; In re D.R.A., 374 S.W.3d at 533.
1. The Desires of the Child; Present and Future Physical and Emotional Needs of the Child; Parental Abilities of the Individuals Seeking Custody; Plans for the Child by the Parties Seeking Custody; and Stability of the Home or Proposed Placement
Mother admits that John is "very bonded to his [G]randmother," that his "present and future emotional needs are being addressed by [Grandmother]," that "[Grandmother] is appropriate and nurturing," that "[Grandmother] wishes to adopt," and that John "is in a safe and stable environment." These admissions are supported by evidence in the record. Further, in relation to these factors, Father testified he is not bonded to John and cannot provide him with a safe and stable environment.
2. Present and Future Emotional and Physical Danger to the Child
The evidence supporting termination under one of the grounds listed in section 161.001(b)(1) can also be considered in support of a finding that termination is in the best interest of the child. See In re C.H., 89 S.W.3d at 27 (holding the same evidence may be probative of both section 161.001(b)(1) grounds and best interest). A parent's ability to provide a child with a safe environment is a primary consideration in determining the child's best interest. In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.); see also Tex. Fam. Code Ann. § 263.307(b)(7), (12). The fact finder may infer from past conduct endangering the child's well-being that similar conduct will recur if the child is returned to the parent. See In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.).
As discussed earlier, Father has a history of criminal conduct, including assault of Mother and drug usage. The trial court could consider this evidence in regards to the present and future emotional and physical danger to John.
3. Programs Available to Assist Persons Seeking Custody and Any Excuse for the Parent's Acts or Omissions
Father contends whether programs are available to assist persons seeking custody is not relevant to Grandmother. However, Father does not present any argument as to why this factor would weigh against the trial court's best interest determination.
The evidence at trial established Father was given a service plan which he did not complete. Father contends he was unable to complete his service plan during his time in the Harris County Jail. While the evidence supported Father's inability to complete his service plan in the Harris County Jail, there was evidence that certain services were available to Father while at the Texas Department of Criminal Justice. The Department contends even crediting Father's testimony that compliance with his service plan was difficult, his failure to participate in rehabilitative services should be considered.
We note that a parent's compliance with a service plan is a factor a fact finder should consider in a determination of best interest, but is not determinative in a sufficiency review. See In re M.G.D., 108 S.W.3d 508, 514-15 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Accordingly, the inability to complete his service plan would not preclude the trial court's finding that termination was in the best interest of the child.
4. Acts or Omissions of the Parent which May Indicate the Existing Parent-Child Relationship is Inappropriate
Father contends he has not had the opportunity to visit John and is incarcerated until January 2018. Father does not explain how this indicates a parent-child relationship with John would be appropriate.
Father testified at trial that he has not financially supported John since he came into the Department's care. Father testified he is not bonded to John and is unable to provide him with a safe and stable environment. Further, as previously discussed, the evidence shows Father has history of criminal acts and drug use. Father's criminal history includes his assault of Mother while pregnant and after John was born. Additionally, Father has been in and out of jail for the past 12 years.
5. Summary
Ultimately, Father contends John's best interest would be served by allowing Father the opportunity to be in his son's life. Father contends he has been free of mind-altering substances for 19 months and practices a set of principles which will enable him to avoid making the same mistakes. The Department contends Father's endangering conduct, failure to participate in rehabilitative services, incarceration, and inability to provide a safe and stable environment coupled with Grandmother's demonstrated ability to provide with John's needs, John's bond with her, and her desire to adopt supported the best-interest finding.
Father testified John's birth caused him to want to make changes in his life. However, the trial judge also was presented with evidence that Father assaulted Mother after John's birth. It was within the trial court's discretion to determine the weight and credibility of Father's testimony. In re K.A.S., 131 S.W.3d 215, 229-30 (Tex. App.—Fort Worth 2004, pet. denied). The factfinder resolved all credibility issues and we may not disturb that determination. See In re H.R.M., 209 S.W.3d at 108; In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003). Further, evidence of a recent turnaround may be a factor to consider, but it is not a determinative one. See In re M.G.D., 108 S.W.3d at 515.
The record contains sufficient evidence to support the best-interest findings based on Father's criminal history and drug use, the stability of John's current placement, and the placement meeting John's emotional and physical needs. After considering the relevant factors under the appropriate standards of review, we hold the evidence is legally and factually sufficient to support the trial court's finding that termination of the parent-child relationship is in John's best interest. We overrule Father's third issue.
D. Conservatorship
Father contends the evidence was legally and factually insufficient to support the trial court's appointment of the Department as sole managing conservator. We review a trial court's appointment of a non-parent as sole managing conservator for abuse of discretion and reverse only if we determine the appointment is arbitrary or unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Under an abuse of discretion standard, legal and factual insufficiency are relevant factors in assessing whether the trial court abused its discretion rather than independent grounds of error. In re A.H.A., No. 14-12-00022-CV, 2012 WL 1474414, at *11 (Tex. App.—Houston [14th Dist.] Apr. 26, 2012, no pet.) (mem. op.).
Father contends the Department's appointment as managing conservator was made under the authority of section 161.207. Our review of the trial court's decree shows the trial court found appointment of one or both parents would not be in John's best interest "because the appointment would significantly impair the child's physical health or emotional development." Accordingly, the trial court made independent findings on conservatorship under section 153.131(a) that were not solely a consequence of termination. See In re J.A.J., 243 S.W.3d at 615. Father does not challenge these independent findings in his conservatorship challenge.
Rather, Father cites to Section 161.208 and contends the department did not diligently consider his relatives for placement of John. The Department contends this provision is inapplicable. Section 161.208 applies when the Department has not personally served a parent in a suit in which it seeks termination of the parent's parental rights. See Tex. Fam. Code Ann. § 161.208 (West 2014). In such a case, the Department may not be appointed managing conservator unless the Department makes a diligent effort to locate the missing parent and a relative of that parent and the relative located had a reasonable opportunity to request appointment as managing conservator or the Department has been unable to locate the missing parent or a relative of that parent. See id. Father was not a missing parent in this case; he was present at trial and has not argued at any stage of these proceedings that he was not properly served in this case. Accordingly, we conclude section 161.208 is not applicable herein.
Further, we have concluded the evidence supporting Father's termination was legally and factually sufficient under the higher clear-and-convincing burden. Accordingly, we conclude the trial court did not abuse its discretion in appointing the Department as sole managing conservator of John. See In re L.G.R., 498 S.W.3d 195, 207 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); see also Tex. Fam. Code Ann. § 161.207 (West 2014). We overrule Father's fourth issue.
CONCLUSION
The trial court's judgment is affirmed.
/s/ John Donovan
Justice Panel consists of Justices Boyce, Donovan, and Wise.