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finding evidence of parental termination as to other children relevant in a best interest determination
Summary of this case from In re A.M.O.Opinion
No. 04-16-00047-CV
05-18-2016
IN THE INTEREST OF M.N.Y.-M., a Child
MEMORANDUM OPINION
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2015-PA-00285
Honorable Richard Garcia, Associate Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Gabrielle and James appeal the termination of their parental rights to M.N.Y.-M. Gabrielle argues there is legally and factually insufficient evidence that she failed to comply with her family service plan and that termination of her parental rights is in M.N.Y.-M.'s best interest. James argues there is legally and factually insufficient evidence that termination of his parental rights is in M.N.Y.-M.'s best interest. We affirm the trial court's judgment.
To protect the identity of the minor child, we refer to the child's parents by their first names and to the child by her initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2). --------
BACKGROUND
M.N.Y.-M., who was born in January 2015, was Gabrielle and James's fourth child. M.N.Y.-M. was born while termination proceedings regarding Gabrielle and James's other three children were pending. The Department filed a petition for termination of Gabrielle and James's parental rights and for conservatorship of M.N.Y.-M. The Department removed M.N.Y.-M. based on allegations that Gabrielle's and James's living conditions were not appropriate for a newborn and that James was observed buying drugs soon after M.N.Y.-M. was born. The Department placed M.N.Y.-M. with James's cousin, Beverly.
The case proceeded to a bench trial. The witnesses who testified were Gabrielle, James, Beverly, the Department's caseworker Crystal Tipton, Gabrielle's counselor Brenda Martinez, and James's counselor Cheryl Oswald. The trial court signed an order terminating both Gabrielle's and James's parental rights to M.N.Y.-M. The trial court found Gabrielle and James failed to comply with court-ordered provisions of their family service plans and that James used a controlled substance that endangered M.N.Y.-M.'s health or safety and either did not complete a substance abuse program or relapsed after completing such a program. The trial court also found that termination of Gabrielle's and James's parental rights is in M.N.Y.-M.'s best interest. Gabrielle and James now appeal.
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. 2015). 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 determinations of credibility. 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. But we may not simply disregard undisputed facts that do not support the finding; to do so would not comport with the heightened burden of proof by clear and convincing evidence. 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.
GABRIELLE'S APPEAL
Gabrielle argues there is legally and factually insufficient evidence to establish she failed to complete her family service plan and termination of her parental rights is in M.N.Y.-M.'s best interest.
A. Family Service Plan
Gabrielle argues it was undisputed she completed all of the services required by the Department's family service plan. Section 161.001(b)(1)(O) provides a ground for termination when a parent:
fail[s] to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the
child's removal from the parent under Chapter 262 for the abuse or neglect of the child.TEX. FAM. CODE ANN. § 161.001(b)(1)(O). The trial court ordered Gabrielle to comply with all requirements of the Department's family service plan. The Department's family service plan required Gabrielle to complete several services, specifically to "maintain housing that is safe and free of hazards," "demonstrate a willingness and ability to protect her child from people who may inflict serious harm," and not "engage with individuals known to engage in criminal activity." Clear and convincing evidence of the failure to comply with these requirements satisfies subsection (O). See In re C.M.C., 273 S.W.3d 862, 874-75 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
Caseworker Tipton testified Gabrielle continued to maintain a relationship with James, knowing he was abusing drugs. Tipton explained that in September 2015, after James's parental rights to the other three children were terminated and after completing a drug rehabilitation program, James tested positive for cocaine. James' counselor Oswald testified that in October 2015, James told her he had relapsed. James testified at trial and admitted he had relapsed and used cocaine.
Tipton also testified she believed Gabrielle and James were currently in a romantic relationship. She stated, "There's times when they told me they haven't been in a relationship and they'll forget that they're butt-dialing me and I can hear them fighting in the background." Tipton described Gabrielle and James's relationship as co-dependent. She explained, "If Gabby -- if I try to arrange an appointment with her, she needs to talk to James because he has the car. If I call her and I need to -- if I call him and I need to do something, she is calling me back for him." Gabrielle's counselor Martinez also testified she believed Gabrielle and James were in a romantic relationship based on what Gabrielle had told her and what she had observed. She testified Gabrielle told her she continues to help James, and James continues to drive her to her appointments. James's counselor Oswald testified Gabrielle's and James's lives were enmeshed and their relationship was "toxic." She, too, believed they were in a romantic relationship with each other "[b]ecause, frequently, I'd go over there [for in-home counseling] and she was there. Occasionally, she wasn't. Sometimes I would go over there and she'd slept over."
Tipton further testified that Gabrielle lived with her mother. Tipton stated the home was unsanitary; the white linoleum floor and carpets had turned black because they had not been cleaned in months; dishes were all over the home; and the kitchen appeared not to have been cleaned in weeks. She also testified Gabrielle's father was living at the home until a month before trial, and he was a registered sex offender. Although Tipton testified Gabrielle had completed the required services, a factfinder could reasonably have formed a firm belief or conviction that Gabrielle failed to comply with the other court-ordered provisions of her family service plan requiring her to not "engage with individuals known to engage in criminal activity," to "maintain housing that is safe and free of hazards," and to "demonstrate a willingness and ability to protect her child from people who may inflict serious harm." See TEX. FAM. CODE ANN. § 161.001(b)(1)(O); In re C.H., 89 S.W.3d at 25; In re C.M.C., 273 S.W.3d at 874-75.
B. 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. "Evidence that the parent has committed the acts or omissions prescribed by section 161.001 may also be probative in determining the child's best interest; but the mere fact that an act or omission occurred in the past does not ipso facto prove that termination is currently in the child's best interest." In re O.N.H., 401 S.W.3d at 684 (internal citation omitted). "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.
When a child is too young to express her desires, the factfinder may consider whether the child has bonded with her current caregiver, is well-cared for, and whether the child has spent minimal time with the parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Tipton testified M.N.Y.-M., who was about one year old at the time of trial, appeared bonded with Gabrielle, and Gabrielle participated in weekly visits. Beverly testified M.N.Y.-M. was placed with her two days after M.N.Y.-M. was born and "[s]he is doing well. She is . . . always happy; she has a very bright spirit." Tipton further testified Beverly planned to adopt M.N.Y.-M.
Gabrielle argues there was no evidence she posed a danger to M.N.Y.-M. and the stability of her home was established. However, there was evidence that Gabrielle remained in a relationship with James knowing he continued to use cocaine, the home was unsanitary, and she lived with a registered sex offender. See In re D.M., 452 S.W.3d at 471; see also In re O.R.W., No. 09-15-00079-CV, 2015 WL 4760159, at *4 (Tex. App.—Beaumont Aug. 13, 2015, no pet.) (mem. op.) (holding exposing a child to "both unsanitary living conditions and an accused sex offender indicated an inability to meet [the child's] emotional and physical needs and to protect her from certain dangers" and supported best-interest finding). The evidence that Gabrielle's parental rights to three other children were terminated was also relevant to the trial court's best-interest determination. See In re L.C.B, No. 04-15-00680-CV, 2016 WL 805532, at *4 (Tex. App.—San Antonio Mar. 2, 2016, no pet.) (mem. op.).
Gabrielle argues she denied being in a romantic relationship with James. Gabrielle's testimony was contradicted by several other witnesses. We may not reweigh issues of witness credibility and must defer to the trial court's reasonable credibility determinations. See In re J.P.B., 180 S.W.3d at 573. Although Gabrielle also contends she completed the services outlined in her family service plan, Gabrielle's counselor Martinez testified Gabrielle had not made significant progress in meeting the goals set out in counseling. Gabrielle testified she was not concerned about her parental rights being terminated, and she admitted to playing games on her phone during the trial. We hold a factfinder could reasonably have formed a firm belief or conviction that termination of Gabrielle's parental rights is in M.N.Y.-M.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re C.H., 89 S.W.3d at 25; Holley, 544 S.W.2d at 372.
JAMES'S APPEAL
James contends there is legally and factually insufficient evidence termination of his parental rights is in M.N.Y.-M.'s best interest. There was no testimony about M.N.Y.-M.'s bond with James, and Tipton testified James did not attend many of his scheduled visits with M.N.Y.-M. There was also evidence James continued to use cocaine after his parental rights to his other three children were terminated and after he completed a drug rehabilitation program. Tipton further testified that James, too, lived with a registered sex offender. James's counselor Oswald testified James's "heart doesn't seem to be in it to be strong with his relapse prevention. He seems like he liked his life the way it was." A factfinder could reasonably have formed a firm belief or conviction that termination of James's parental rights is in M.N.Y.-M.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re C.H., 89 S.W.3d at 25; Holley, 544 S.W.2d at 372.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice