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holding evidence of continued drug use and exposure to domestic violence as sufficient to support finding that parent violated subsection (D)
Summary of this case from In re A.J.A.Opinion
04-21-00421-CV
02-09-2022
IN THE INTEREST OF J.C., J.V.C., and J.P.C. III, Children
From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2020PA00604 Honorable Susan D. Reed, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Liza A. Rodriguez, Justice.
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice.
Appellant Mother appeals the trial court's order terminating her parental rights to her children J.C., J.V.C., and J.P.C. III. Mother challenges the sufficiency of the evidence to support the trial court's findings under two statutory predicate grounds for termination as well as the sufficiency of the evidence to support the trial court's finding that termination was in the children's best interest. We affirm.
To protect the identities of the minor children in this appeal, we refer to appellant as "Mother" and to the children by their initials. See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Background
In August 2019, Mother attempted suicide, and the Texas Department of Family and Protective Services (the "Department") became involved. At the time, the children were ages five, 1 four, and four. In March 2020, the Department filed a petition to terminate Mother's parental rights, and on July 7, 2021, the trial court held a bench trial. Afterwards, the trial court signed an order terminating Mother's parental rights to the children, finding three statutory predicate grounds for termination and that termination was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O); id. § 161.001(b)(2). Mother appealed.
The trial court also terminated the parental rights of the father to J.V.C., who was also the alleged father of the other two children. This father/alleged father did not appeal the trial court's termination order.
Standard of Review
A parent-child relationship may be terminated, pursuant to section 161.001 of the Texas Family Code, only if the trial court finds by clear and convincing evidence one of the predicate grounds enumerated in subsection (b)(1) and that termination is in a child's best interest. See id. § 161.001(b)(1), (2). 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.
We review the legal and factual sufficiency of the evidence under the standards of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002). In reviewing the legal sufficiency of the evidence, 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." Id. at 266. "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. In reviewing the factual sufficiency of the evidence, we "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." Id. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited 2 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.
Predicate Grounds
The trial court found clear and convincing evidence of three statutory predicate grounds under subsection 161.001(b)(1) to terminate Mother's parental rights: (1) Mother knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children; (2) Mother engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children's physical or emotional well-being; and (3) Mother failed to comply with a court-ordered service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). Although Mother does not challenge predicate ground (O), Mother's due process and due course of law rights require that we consider Mother's issue as to the trial court's findings under subsections (D) and (E) because these findings may impact future termination proceedings. See In re N.G., 577 S.W.3d 230, 236-37 (Tex. 2019) (per curiam). Subsections (D) and (E) concern endangerment. Mother argues against the findings together, and we likewise consolidate our analysis on these findings. See In re J.T.G., 121 S.W.3d 117, 126 (Tex. App.-Fort Worth 2003, no pet.) (consolidating analysis regarding statutory grounds (D) and (E) because the grounds are interrelated).
Applicable Law
Section 161.001(b)(1)(D) allows a trial court to terminate parental rights if it finds by clear and convincing evidence that the parent has "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(D). Under subsection (D), the trial court examines "evidence related to the environment of the children to determine if the environment was the source of endangerment to the children's physical or emotional well-being." In re J.T.G., 121 S.W.3d at 125. 3 "'Environment' refers to the acceptability of living conditions, as well as a parent's conduct in the home." In re S.R., 452 S.W.3d 351, 360 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). "A child is endangered when the environment creates a potential for danger that the parent is aware of but consciously disregards." Id. "[A] parent need not know for certain that the child is in an endangering environment; awareness of such a potential is sufficient." In re R.S.-T., 522 S.W.3d 92, 109 (Tex. App.-San Antonio 2017, no pet.) (citation omitted).
Section 161.001(b)(1)(E) allows a trial court to terminate a parent's rights if the 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 trial court must determine whether there is evidence that a parent's acts, omissions, or failures to act endangered the child's physical or emotional well-being. See In re J.T.G., 121 S.W.3d at 125.
In the context of both subsection (D) and (E), "endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or mental health. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam); In re J.T.G., 121 S.W.3d at 125. However, there are some distinctions in the application of the subsections. First, termination under subsection (D) is permitted based upon only a single act or omission. In re R.S.-T., 522 S.W.3d at 109. Under subsection (E), our analysis may not rest on a single act or omission; it must be "a voluntary, deliberate, and conscious course of conduct." Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.-Houston [1st Dist.] 2010, pet. denied). Second, "[i]n evaluating endangerment under subsection (D), we consider the child's environment before the Department obtained custody of the child." In re S.R., 452 S.W.3d at 360. Under subsection (E), courts may consider conduct both before and after the Department removed the child. Id. 4
Trial Testimony
Mother testified that in 2019, she lived with her father in Eagle Pass, Texas. Mother had "family problems" related to her aunts revealing to her that her father was not her biological father. After learning about her father, Mother started to abuse methamphetamine "to forget about it." Mother's father "kicked [Mother] out of the house," and Mother was homeless for a month-and-a-half or two months, during which time, Mother and the children lived in her vehicle. Mother could not "find a stable place," and she attempted suicide in August 2019.
Following Mother's suicide attempt, the Department became involved and offered Mother family-based safety services. One of Mother's aunts, Elsa, picked up Mother and the children from Eagle Pass to live with Elsa in Dallas. In Dallas, Mother attended in-patient drug rehabilitation for 28 days, and stayed with Elsa after completing rehabilitation. A total of 13 people lived in Elsa's one-bedroom apartment, including Mother and her children. After moving in, Mother "started having problems" with Elsa. On Thanksgiving 2019, Mother and Elsa "got into [a] big fight." Mother "did threats towards [her] life" and had a seizure. Following the fight, Mother was sent to a behavioral hospital for 10 days. After Mother returned to Elsa's apartment, problems resumed. According to Mother, Elsa's home was stressful and chaotic, and the children fought.
In February 2020, Mother left Dallas with her children and moved to San Antonio. For a week-and-a-half or two weeks, Mother lived in a hotel room, which her girlfriend's uncle rented. Mother testified that she then got an apartment that she paid for herself. In March 2020, Mother relapsed on drugs, and the Department took possession of the children. Mother then attended a 60-day, in-patient drug rehabilitation program. Three days prior to completion, Mother was discharged. Mother testified that she had a pinched nerve and was medically discharged from the program because she could not take care of herself. According to Mother, she required a steroid 5 shot, but the hospital in San Antonio would not provide one. Mother took a bus to Eagle Pass. There, her father picked her up and took her to Mexico to receive a steroid shot. Mother's caseworker testified that Mother's testimony as to her discharge was not correct. The caseworker further testified that additional drug treatment was recommended for Mother in San Antonio, but she did not access the treatment because she returned to Eagle Pass.
During the case, Mother was required by the trial court to submit to random drug testing. Mother's caseworker testified that Mother submitted to only two of 10 required tests. Mother testified that she last used drugs on October 11, 2020; however, Mother acknowledged that she tested positive for drugs on May 25, 2021.
Mother admitted to her caseworker, at an unspecified time, that her relationship with her girlfriend involved domestic violence that was "getting very bad." The caseworker stated that Mother sought out women's shelters. Mother testified that she had been in a relationship with her girlfriend for two years and that the relationship involved domestic violence in the beginning. She further testified that domestic violence had not occurred for eight months prior to trial and that Mother and her girlfriend attended couples counseling. At the time of trial, Mother was living with her girlfriend in Eagle Pass.
Discussion
Mother argues there is insufficient evidence to establish that domestic violence endangered the health or safety of the children. Mother does not argue as to other aspects of the children's living environment or her conduct that may impact the endangerment findings.
The Department ignores Mother's issue as to statutory predicate grounds; its brief addresses only Mother's issue as to the best interest of the children.
We hold there is ample evidence to support the trial court's endangerment findings. According to Mother's testimony, she attempted suicide twice prior to removal of her children. 6 The Family Code does not require that a parent's conduct "be directed at the child or that the child suffer actual injury." In re K.J.G., No. 04-19-00102-CV, 2019 WL 3937278, at *5 (Tex. App.- San Antonio Aug. 21, 2019, pet. denied) (mem. op.). "Rather, the specific danger to the child's well-being may be inferred from the parent's misconduct alone." Id. (citation omitted). "Conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child." Id. A parent's suicide attempt is endangering conduct because it exposes a child to emotional harm and the potential of life without the parent. See In re J.T.G., 121 S.W.3d at 126 (holding evidence sufficient to support finding that parent violated subsections (D) and (E) given evidence of continued drug use, domestic violence, and suicide attempt).
Mother's methamphetamine abuse also supports the endangerment findings. "Evidence of illegal drug use supports a conclusion that a child's surroundings endanger his or her physical or emotional well-being." In re A.B.R., No. 04-19-00631-CV, 2020 WL 1159043, at *4 (Tex. App.- San Antonio Mar. 11, 2020, pet. denied) (mem. op). Moreover, "because a parent's illegal drug use exposes her children to the possibility the parent may be impaired or imprisoned, evidence of illegal drug use supports a finding that the parent engaged in a course of conduct that endangered the children's physical or emotional well-being." In re J.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *3 (Tex. App.-San Antonio Nov. 1, 2017, pet. denied) (mem. op.). Mother continued her illegal drug use admittedly as late as October 2020, and she tested positive as late as May 2021. Mother missed eight of 10 drug tests requested by her caseworker. See In re A.M.L., 2019 WL 6719028, at *4 (explaining trial court could infer drug abuse from parent's failure to submit to drug testing). "Evidence that a parent continued to use illegal drugs even though the parent knew her parental rights were at risk is conduct showing a voluntary, deliberate, and conscious course of conduct, which by its nature endangers a child's well-being." See In re K.J.G., 2019 WL 3937278, at *5. 7
Mother's housing instability further supports the endangerment findings. Prior to the Department's involvement, the children's lives were marked by unstable housing. Mother and her children lived in her vehicle for over a month before the Department became involved. See In re B.N.D., No. 04-21-00286-CV, 2021 WL 6127883, at *4 (Tex. App.-San Antonio Dec. 29, 2021, no pet. h.) (mem. op.) (considering parent's lack of stable housing as factor supporting findings pursuant to subsections (D) and (E)).
Last, Mother acknowledged that her relationship with her girlfriend involved domestic violence, and she sought women's shelters to avoid the violence. A child is endangered by a parent's course of conduct that "creates a potential for danger which the parent is aware of but disregards." In re R.S.-T., 522 S.W.3d at 110 (citation omitted). It is not necessary that the children be actually exposed or injured by the domestic violence. See id. "Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment." Id. (citation omitted).
The trial evidence is legally and factually sufficient to support the trial court's endangerment findings under subsections (D) and (E). We overrule Mother's issue challenging these findings.
Best Interest
Mother's second issue challenges the sufficiency of the evidence to support the trial court's finding that termination of Mother's parental rights is in the children's best interest. There is a strong presumption that keeping a child with a parent is in a child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). However, it is equally presumed that "the 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). In determining whether a child's parent is willing and able to 8 provide the child with a safe environment, we consider the factors set forth in Texas Family Code section 263.307(b). See id. § 263.307(b).
Our best interest analysis is guided by consideration of the non-exhaustive Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 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. See id.; accord In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013). The foregoing factors are not exhaustive, and the absence of evidence regarding some of the factors does not preclude the factfinder from reasonably forming a strong conviction that termination is in a child's best interest, particularly if the evidence is undisputed that the parent-child relationship endangered the safety of the child. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
As detailed above, the evidence supports the trial court's endangerment findings. Cf. id. at 28 (explaining that evidence that proves one or more statutory grounds for termination may be probative in proving termination is in child's best interest). In addition to endangerment, evidence of Mother's suicide attempts and drug use suggests inadequate parenting skills and the instability of Mother's home. See In re D.D.M., No. 01-18-01033-CV, 2019 WL 2939259, at *7 (Tex. App.-Houston [1st Dist.] July 9, 2019, no pet.) (mem. op.); In re A.H.L., No. 01-16-00784-CV, 2017 WL 1149222, at *5 (Tex. App.-Houston [1st Dist.] Mar. 28, 2017, pet. denied) (mem. op.) ("A parent's drug use may indicate instability in the home because it exposes the children to the possibility that the parent may be impaired or imprisoned."); see also In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013) 9 (considering parent's suicide attempt as evidence supporting finding that termination was in child's best interest).
Mother does not contest the finding that she failed to comply with a court-ordered service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(O). Mother's failure to complete required drug treatment and comply with drug testing indicates an unwillingness to seek out and obtain available resources. See id. § 263.307(b)(10) (providing courts may consider 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); see also In re A.N., No. 04-19-00584-CV, 2020 WL 354773, at *4 (Tex. App.-San Antonio Jan. 22, 2020, no pet. h.) (mem. op.) ("A fact finder may infer from a parent's failure to take the initiative to complete the services required to regain possession of h[er] child that [s]he does not have the ability to motivate h[er]self to seek out available resources needed now or in the future.") (citation omitted).
Mother testified she is no longer using illegal drugs and that she began an out-patient drug rehabilitation program four weeks before trial. Additionally, Mother and her caseworker testified that Mother obtained employment at a nursing home shortly before trial. Mother's neighbor testified that she had been helping Mother with transportation "recently." While this testimony is some evidence of Mother's improved conduct and situation, "evidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of drug use and irresponsible choices." See J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) (rejecting an appellate court's attempt to attribute greater weight to parent's recent improvements and less to parent's past challenges).
At the time of trial, the children lived with their maternal aunt Elsa, with whom they had lived since 2019. By the time of trial, Elsa had moved into a two-bedroom home. There was no evidence of the children's desires at trial. According to the caseworker, the children were doing 10 well in their placement. The children were bonded to their aunt and attended counseling to address trauma. The Department sought termination, so that Elsa could adopt the children.
Viewing all the evidence in the light most favorable to the trial court's best interest finding, we conclude that the trial court could have formed a firm belief or conviction that termination of Mother's parental rights was in the children's best interest. See In re J.F.C., 96 S.W.3d at 266. We further conclude that any disputed evidence, viewed in light of the entire record, could have been reconciled in favor of the trial court's best interest finding or was not so significant that the trial court could not reasonably have formed a firm belief or conviction that termination was in the children's best interest. See id. Therefore, we hold the evidence is legally and factually sufficient to support the trial court's best interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2). We overrule Mother's second issue.
Conclusion
We affirm the trial court's order. 11