Opinion
04-22-00504-CV
12-14-2022
IN THE INTEREST OF J.J.M., a Child
From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2021-PA-01761 Honorable Charles E. Montemayor, Judge Presiding
Sitting: Patricia O. Alvarez, Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
J.M. appeals the trial court's order terminating his parental rights to his child J.J.M. (born 2021). We affirm the trial court's order.
To protect the privacy of the minor child, we use initials to refer to the child and his biological parents. Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Background
In October of 2021, the Texas Department of Family and Protective Services removed J.J.M. from the hospital where he was born because J.J.M. and his mother, J.K., tested positive for methamphetamine at the child's birth. J.J.M. also showed signs of withdrawal. At that time, J.M. was incarcerated. The Department obtained temporary managing conservatorship over J.J.M., placed him in foster care, and filed a petition to terminate J.K.'s and J.M.'s parental rights. The Department ultimately pursued termination of J.K.'s and J.M.'s parental rights.
Nine months after removal, the trial court held a one-day bench trial via Zoom at which J.M. appeared. The trial court heard testimony from three witnesses: (1) the Department's caseworker; (2) J.K.; and (3) J.M. At the conclusion of trial, the court signed an order terminating J.M.'s parental rights pursuant to section 161.001(b)(1)(N), (O), and (Q) and its finding that termination of J.M.'s parental rights was in the best interest of J.J.M. J.M. appealed.
The trial court also terminated J.K.'s parental rights. She is not a party to this appeal.
Analysis
In one issue, J.M. challenges the legal and factual sufficiency of the trial court's order that termination of his parental rights was in the best interest of J.J.M. He does not challenge the trial court's predicate findings under section 161.001(b)(1)(N), (O), and (Q).
Standard of Review
The involuntary termination of a natural parent's rights implicates fundamental constitutional rights and "divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.-San Antonio 2017, pet. denied) (internal quotation marks omitted). "As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent." Id. The Department had the burden to prove, by clear and convincing evidence, both that a statutory ground existed to terminate J.M.'s parental rights and that termination was in J.J.M.'s best interest. Tex. Fam. Code Ann. § 161.206; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). "'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; In re S.J.R.-Z., 537 S.W.3d at 683.
When reviewing the sufficiency of the evidence supporting a trial court's order of termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). In reviewing the legal sufficiency of the evidence to support the trial court's findings, we 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.O.A., 283 S.W.3d 336, 344 (Tex. 2009). In reviewing the factual sufficiency of the evidence, we consider disputed or conflicting evidence. Id. at 345. A factual sufficiency review requires us to consider the entire record to determine whether the evidence that is contrary to a finding would prevent a reasonable factfinder from forming a firm belief or conviction that the finding is true. Id. The factfinder is the sole judge of the weight and credibility of the evidence. Id. at 346.
Applicable Law
There is a strong presumption that a child's best interest is served by maintaining the relationship between a child and the natural parent, and the Department has the burden to rebut that presumption by clear and convincing evidence. See, e.g., In re R.S.-T., 522 S.W.3d 92, 97 (Tex. App.-San Antonio 2017, no pet.). To determine whether the Department satisfied this burden, the Texas Legislature has provided several factors for courts to consider regarding a parent's willingness and ability to provide a child with a safe environment, and the Texas Supreme Court has used a similar list of factors to determine a child's best interest. Tex. Fam. Code Ann. § 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
These factors include, inter alia: "(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, the child's parents, other family members, or others who have access to the child's home; (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 consisting of an extended family and friends is available to the child." Tex. Fam. Code § 263.307(b).
Those 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 those individuals to promote the best interest of the child; (6) the plans for the child by these individuals or the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371- 72 (Tex. 1976).
A best interest finding, however, does not require proof of any particular factors. See In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *5 (Tex. App.-San Antonio Apr. 29, 2015, no pet.) (mem. op.). Neither the statutory factors nor the Holley factors are exhaustive, and "[e]vidence of a single factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in the child's best interest." In re J.B.-F., No. 04-18-00181-CV, 2018 WL 3551208, at *3 (Tex. App.-San Antonio July 25, 2018, pet. denied) (mem. op.). Evidence that proves a statutory ground for termination is probative on the issue of best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
Application
The Department presented evidence that J.M. had been incarcerated "throughout the duration of this case" and is not scheduled to be released until 2024 at the earliest and 2028 at the latest. J.M. testified, however, that an appeal of his criminal conviction was pending and that he expected to be "released immediately," either on parole or upon the conclusion of his appeal. We have previously recognized that "parole decisions are inherently speculative and rest entirely within the parole board's discretion." In re E.N.Q., No. 04-17-00089-CV, 2017 WL 2791286, at *4 (Tex. App.-San Antonio June 28, 2017, pet. denied) (mem. op.). Accordingly, the trial court was not required to accept J.M.'s claim that he would be released soon.
As the Department notes in its brief, J.M.'s sentence was affirmed by this court approximately one month after the trial court terminated his parental rights. See [J.M.] v. State, No. 04-21-00418-CR, 2022 WL 3638238, at *3 (Tex. App.-San Antonio Aug. 24, 2022, no pet.) (mem. op., not designated for publication).
The length of J.M.'s sentence, along with his resulting inability to care for J.J.M. during his incarceration, was one of the predicate findings upon which the trial court terminated J.M.'s parental rights. See Tex. Fam. Code Ann. § 161.001(b)(1)(Q). J.M. has not challenged that finding on appeal. See In re S.J.R.-Z., 537 S.W.3d at 682 (we must accept unchallenged findings as true). While establishing a predicate ground for termination does not relieve the Department of its obligation to prove termination was in J.J.M.'s best interest, the same evidence may be probative on both issues. See In re C.H., 89 S.W.3d at 28. A parent's incarceration "is an appropriate factor the court may consider in evaluating the best interest of the child." In re A.M.O., No. 04-17-00798-CV, 2018 WL 2222207, at *3 (Tex. App.-San Antonio May 16, 2018, no pet.) (mem. op.). This is because "[a] parent's lengthy absence from a child's life during her early years due to incarceration creates an emotional vacuum that threatens the child's emotional well-being and indicate[s] that [the] parent-child relationship [is] not a proper one." In re J.M.G., 608 S.W.3d 51, 57 (Tex. App.-San Antonio 2020, pet. denied) (internal quotation marks omitted, alterations in original).
Here, it is undisputed that because of J.M.'s imprisonment, he has never met J.J.M. and therefore has not formed a bond with him. See In re E.A.M.V., No. 04-18-00866-CV, 2019 WL 1923214, at *4 (Tex. App.-San Antonio May 1, 2019, pet. denied) (mem. op.). Additionally, the evidence shows that J.M. did not provide monetary or other material support to J.J.M. during this case. See In re M.M.M., No. 04-17-00831-CV, 2018 WL 2418460, at *4 (Tex. App.-San Antonio May 30, 2018, pet. denied) (mem. op.). Because the evidence showed J.M.'s release date was uncertain, the trial court could have reasonably concluded that J.M., "through his own course of conduct, had put himself in a position in which he was unable to meet [J.J.M.'s] present and future physical and emotional needs." In re E.A.M.V., 2019 WL 1923214, at *4.
A trial court may also judge a parent's future conduct by his past conduct. In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). The Department presented evidence that J.M.'s current incarceration resulted from a conviction for possession of a controlled substance, and J.M. testified he had had issues with substance abuse in the past. See Tex. Fam. Code § 263.307(b)(8) (trial court may consider parent's history of substance abuse). This evidence is relevant to a best interest determination because drug use can destabilize the home and expose children to physical and emotional harm if not resolved. See, e.g., In re K.J.G., No. 04-19-00102-CV, 2019 WL 3937278, at *8 (Tex. App.-San Antonio Aug. 21, 2019, pet denied). While J.M. testified he had not "done drugs in a long time," the trial court was not required to credit this testimony. See, e.g., In re D.M., 452 S.W.3d 462, 472 (Tex. App.-San Antonio 2014, no pet.).
As noted above, the evidence showed both J.J.M. and his mother, J.K., were positive for methamphetamine at J.J.M.'s birth. The Department's caseworker testified that J.K. did not address her drug use during this case, that she was unsuccessfully discharged from drug treatment, and that she missed twenty-seven drug tests requested by the Department. Despite hearing this testimony, however, J.M. testified that he believes J.K. is "a good mom" who "isn't a drug user." He testified that he wanted "to reunify with [J.J.M.] and [J.K.] and have a family." The trial court could have reasonably interpreted this testimony as showing that J.M. minimized the threat J.K.'s drug use posed to J.J.M. and that he would not be protective of J.J.M. See Tex. Fam. Code § 263.307(b)(8), (12); In re Y.M.L., No. 04-19-00168-CV, 2020 WL 1695498, at *5 (Tex. App.- San Antonio Apr. 8, 2020, pet. denied) (mem. op.).
A trial court conducting a best interest review may also consider a parent's "inability to maintain a lifestyle free of criminal conduct[.]" See In re X.J.L., No. 04-17-00466-CV, 2017 WL 4655102, at *3 (Tex. App.-San Antonio Oct. 18, 2017, no pet.) (mem. op.); see also Tex. Fam. Code § 263.307(b)(11) (trial court may consider parent's willingness and ability to effect positive changes); Holley, 544 S.W.2d at 371-72. Here, the Department presented evidence that J.M. had previously been incarcerated on charges of retaliation and theft. Based on this history, the trial court could have reasonably concluded that even if J.M. were released from prison, he may not be able to provide J.J.M. with a stable home. See Tex. Fam. Code § 263.307(a); In re X.J.L., 2017 WL 4655102, at *3.
At the time of trial, J.J.M. was living with the same foster family he had been with since he was removed from the hospital after his birth. The Department's caseworker testified that J.J.M. "still sometimes wakes up in the middle of the night crying and screaming" as a result of his in-utero exposure to drugs. See Tex. Fam. Code § 263.307(b)(1) (trial court may consider "the child's age and physical and mental vulnerabilities"). The caseworker also testified that J.J.M. had a "severe" cranial deformity that was "possibly caused by [J.K.'s] drug use[.]" See id. Nevertheless, the Department presented evidence that J.J.M. was thriving in his foster family's care, that the family was meeting all of his medical needs, and that the family was willing to adopt him. See Tex. Fam. Code § 263.307(a); Holley, 544 S.W.2d at 371-72. The caseworker also testified that the foster family had paid "on their own" for a helmet that was not covered by insurance but had "significantly" improved J.J.M.'s cranial condition.
J.M. testified that he loved J.J.M. and J.K., and he stated that he was engaged in programs that were teaching him "to be a better man so [he] can get out and do the right thing by [his] family." See Tex. Fam. Code § 263.307(b)(10). He also testified that he could provide a home for J.J.M. when he is released because he is "already on disability. All I have to do is get out and activate my housing plan." J.M. did not testify to any specific plans that he had to establish a safe and stable home after his release from prison. See Holley, 544 S.W.2d at 371-72.
After reviewing the evidence under the appropriate standards of review, we conclude a reasonable factfinder could have formed a firm belief or conviction that termination of J.M.'s parental rights was in J.J.M.'s best interest. In re J.F.C., 96 S.W.3d at 266. We therefore hold that legally and factually sufficient evidence supports the trial court's best interest finding, and we overrule J.M.'s arguments to the contrary.
Conclusion
We affirm the trial court's order of termination.