Opinion
NO. 01-17-00547-CV
12-21-2017
IN THE INTEREST OF A.L.B. AND A.M.B., Children
On Appeal from the 315th District Court Harris County, Texas
Trial Court Case No. 2015-02581J
MEMORANDUM OPINION
In this parental rights termination case, appellant A.B. (Mother) challenges the trial court's final decree terminating her parental rights to two of her children, A.L.B. and A.M.B. In her sole issue, she argues that the evidence was factually insufficient to support the trial court's finding that termination of her parental rights was in the children's best interest.
We affirm.
Background
Mother has three children who are relevant to this suit: A.A.B, A.L.B., and A.M.B. A.A.B was born in January 2009 and tested positive at birth for cocaine. The family was referred to the Department of Family and Protective Services (DFPS), and DFPS's files indicate that Mother was not cooperative and tried to prevent the hospital staff from taking blood samples. DFPS referred the family to family-based safety services in February 2009, but by September 2009 it determined that Mother had made minimal progress in completing her court-ordered services. The records indicated that the family had moved five times during the open case and the relationship between Mother and L.P.B. (Father) was likewise unstable. DFPS then sought termination of Mother's parental rights to A.A.B., which was granted on August 18, 2010, on the grounds of Mother's endangering conduct, pursuant to Family Code section 161.001(b)(1)(D) and (E). A.A.B. was eventually adopted by Father's aunt (Aunt).
The trial court also found, in its decree terminating Mother's rights to A.A.B., that Mother had constructively abandoned A.A.B. and had failed to complete her court-ordered family service plan. Father's rights to A.A.B. were likewise terminated.
Mother and Father remained in a relationship and continued to move. A.L.B. was born in August 2010 in Denver, Colorado, and A.M.B. was born in November 2011 in Houston. Also in November 2011, DFPS received another referral of neglectful supervision and physical abuse by Mother against A.L.B., but it could not complete an investigation because the family could not be located and DFPS had reason to believe that they had moved to Wisconsin.
A.L.B. and A.M.B. first came into DFPS care in April 2015, when they were four and three years old, respectively, following new reports of neglectful supervision against both Mother and Father. Police had responded to two disturbance calls and observed "deplorable" conditions in the motel room where the family was living at the time. According to the reports cited in the Children's Crisis Care Center's assessment, the police and DFPS investigator observed "drug paraphernalia, rotting food and feces in the toilet." The DFPS investigator also observed "clothes piled halfway up the wall near the bathroom, several empty beer bottles, several packages of Cigarillo cigars and cigar butts on a table," and "[r]otting food . . . in the refrigerator." The children told one of the police officers that "mommy and daddy smoke weed in the bathroom," and the children also made statements to police indicating that they had witnessed their parents engage in domestic violence. The children reported to the DFPS investigator that they observed a physical altercation between their parents that started when Mother hit Father, and A.L.B. "stated mommy punched daddy in the face and that is why his lip is bleeding." The police also reported that when Mother was handcuffed and placed in the patrol car, she was "out of control and trying to kick the window of [the] patrol car."
This assessment was admitted into evidence during the trial.
The DFPS investigator spoke with both parents. Father informed the investigator that Mother is bipolar but does not take her medications and that she was physically abusive toward him. Mother told the investigator that her only criminal history was petty theft and that she had no CPS history, specifically denying that she had had an older daughter removed from her care. Mother denied having a mental illness, and she denied drug use. Mother also "started yelling that there is no domestic violence in the relationship and she doesn't hit [Father]." At one point she told the investigator that Father "hit himself on the side of the head," and Mother also "got upset and started yelling that she doesn't beat her kids but will pop them on the butt if they are getting on her nerves."
Mother was arrested at that time for public intoxication. Father was arrested based on outstanding warrants, and the children were removed and placed in Aunt's home, with A.A.B., where they remained from April 2015 until September 2016. Due to allegations of abuse, A.L.B. and A.M.B. were later removed from that home and placed in a foster home, and Aunt's family went through family-based safety services.
Evidence also admitted at trial included the decree of termination of Mother's parental rights to A.A.B. pursuant to Family Code sections 161.001(b)(1)(D) and (E) and Mother's family service plan for the case involving A.L.B. and A.M.B. DFPS also presented the results of drug tests showing that Mother's hair specimen tested positive for cocaine on September 28, 2015, February 8, 2016, and June 16, 2016, but she had negative urine tests on those same dates. Furthermore, the caseworker, Randie Carlson, testified that Mother was required to take monthly drug screenings but only appeared at two of the seventeen screenings that DFPS had requested. Carlson testified that two of the drug tests Mother missed were during a time when Mother was in the hospital following a severe accident. The other missed drug tests occurred after Mother had been released from the hospital and after the trial court had ordered that DFPS provide Mother with transportation to take the drug tests, but Mother refused to participate in the testing.
The record also contained a judgment demonstrating that Mother had been convicted of theft in 2014 and was sentenced to eight days in the county jail; a judgment demonstrating her conviction for misdemeanor evading arrest from April 28, 2015, and a sentence of thirty days' confinement in the county jail; a judgment demonstrating a conviction for misdemeanor prostitution on July 24, 2015, and a sentence of eight days' confinement; and a conviction for misdemeanor criminal trespass on February 15, 2016, and a sentence of five days' confinement.
Carlson testified regarding Mother's history with CPS. She testified that Mother's parental rights to A.A.B. were terminated, and she testified that Mother had not completed her family service plan with regard to the case involving A.L.B. and A.M.B. According to Carlson, Mother had failed to maintain a stable living situation, had failed to adequately address her mental health issues, and had failed to demonstrate that she had quit abusing drugs. Carlson also addressed Mother's living situation at the time of trial. Mother was no longer in a relationship with Father. She received $300 per month in social security benefits and she also had some Supplemental Nutrition Assistance Program benefits. Carlson testified that she was not aware of any plans that Mother had regarding how she would support the children.
Carlson further testified that Mother had not maintained stable housing. Mother was in an accident that resulted in hospitalization in December 2015 through January 2016 and in paralysis of her arm and damage to her legs. Upon her release from the hospital, Mother stayed at the Star of Hope shelter throughout the spring of 2016. In August 2016, Carlson visited Mother at the address that Mother had reported as her new home address. Carlson determined that the location was an emergency shelter and testified that the home was unsuitable for the children. She stated that the refrigerator had a chain around it, and when she asked why, Mother reported that "random people would come in and take her food." Carlson also stated that the floors and walls had holes in them, there were "only two lights that work[ed] throughout the whole house," and the "toilet was backing up, so there [were] feces on floor and on the toilet." Carlson also testified that there were "random people" living there and "somebody else's medications" were out on top of Mother's dresser.
In October 2016, Mother presented Carlson with a lease to an apartment in North Houston that she was leasing with her current boyfriend, J.W. However, by the time trial proceedings concluded in May 2017, Carlson had attempted to verify Mother's apartment lease and was unable to do so. Carlson stated that the leasing office allowed her to examine its payment ledger indicating that Mother's continued residence at the apartment was in question.
Carlson testified that Mother visited the children regularly and brought treats and clothing for them. The children were happy to see Mother. Carlson testified that "[t]here [were] a few [visits] that were a little rough in the beginning" due to Mother's making "inappropriate comments, saying that the girls better pack their bags because she was going to be bringing them to her dad's house and those kinds of things," but the visits were "getting better." Mother also told the children that "their father is a bad man because he hits her." Carlson testified that these things occurred at a visit in May 2016, just after Carlson had taken over the case and after Mother had already worked through part of her services.
Carlson testified that the main reasons the children came into DFPS care were Mother's drug use and her inability to provide them a stable home, and she did not believe that Mother had done enough to alleviate those concerns. She had not maintained stable housing and, although she completed drug treatment, she still had positive drug tests or refused to comply with DFPS requests that she submit to a drug test. Carlson also testified that although Mother had completed her psychiatric evaluation as ordered, Mother did not follow up on the recommendations made as a result of her evaluation indicating that she had bipolar disorder. Carlson testified that Mother was told to seek treatment for her bipolar disorder but had never done so.
Carlson testified that neither child has special needs. She testified that while the foster placement where A.L.B. and A.M.B. had been placed was not adoptive, DFPS had put extensive effort into finding an appropriate family placement for them. The children had not been moved out of foster care at the time the trial concluded in May 2017 because DFPS did not want to have to move them again until they could go to their permanent placement. DFPS had been in contact with both the maternal and paternal grandparents. Both of those families were interested in adopting the children, and DFPS had approved a home study for the paternal grandparents and made a recommendation to move forward with placing the children there. Carlson testified that DFPS had initially been concerned when the paternal grandparents named an inappropriate person to serve as their backup caregiver, but that situation had been resolved. Carlson testified that the girls were bonded with their paternal grandparents and that the grandparents were willing and able to facilitate visits between A.L.B. and A.M.B. and their older sister A.A.B., with whom the girls were likewise bonded. Carlson stated that DFPS had a plan to transition the children to the grandparents' care following termination of Mother's parental rights and the trial court's approval of the placement.
Mother also testified. She stated that she was 35 years old at the time of trial and has had five children. Her parental rights to her two oldest children were terminated in Florida more than a decade before the present trial, when Mother was seventeen and the children were five and one. Mother testified that her parental rights to her oldest children were terminated because she was kidnapped and was in England for two years, but she could not remember whether her kidnapping occurred before or after the termination. She stated that her oldest children were originally removed by CPS in Florida after she became homeless due to flood damage and that she had worked with CPS in Florida for a period of time, taking anger management classes, parenting classes, and substance abuse classes. Mother admitted to smoking marijuana at some point prior to the termination of her rights to the oldest children, but she also testified that she had not been using drugs during her pregnancies, while working with Florida CPS, or at any time after the birth of her second child.
After her parental rights to her two oldest children were terminated, Mother lived for periods of time in Florida, California, Wisconsin, and New York. She met Father "on the road" where they "were working the same job." She also spent some time in Texas, where her daughter A.A.B. was born in 2009. Mother testified that the termination of her parental rights to A.A.B. in 2009 was not due to her own fault but because Father's Aunt "lied to CPS and told them that I was on drugs and I couldn't take care of my kids and, . . . I left the city, the state, and uh, she had no whereabouts, and I was abusive; and so she wanted to get my daughter adopted."
Mother further testified that, at the time DFPS became involved with A.L.B. and A.M.B., the family had just returned to Texas from California and was living "back and forth from [the father's] parents' house and . . . a little hotel room."
Mother denied ever being diagnosed with a mental illness. She testified that she did not have a mental illness, did not take any medication for one, and was not being treated by a psychiatrist. She also denied ever using cocaine and stated that she was not aware that there were drug tests showing that she was positive for cocaine use during the pendency of this case. Mother admitted that there had been some domestic violence in her relationship with Father, but it stopped when A.L.B. and A.M.B. came into the picture. She further testified that "he started doing the abusing again" after the children were removed by DFPS, and they finally ended their relationship in 2015. Mother testified that she met her current boyfriend, J.W., in 2016. She testified that there was domestic violence in that relationship as well.
The trial court rendered its decree, finding that Mother's parental rights to A.L.B. and A.M.B. should be terminated pursuant to Family Code sections 161.001(b)(1)(M) and (O) and that termination of Mother's parental rights was in the children's best interest. This appeal followed.
Father's rights were also terminated after he relinquished his rights to the children. Father does not appeal.
Sufficiency of Evidence
Mother concedes that DFPS presented evidence supporting the trial court's finding, under subsection (M), that Mother "had [her] parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E)." See TEX. FAM. CODE ANN. § 161.001(b)(1)(M) (West Supp. 2017). The trial court admitted a copy of the decree that terminated Mother's parental rights to A.A.B. under subsections (D) and (E), and Mother herself testified regarding her history with DFPS. Mother also concedes that the evidence was sufficient to support the trial court's finding that she failed to complete her family service plan under subsection (O) because she failed to submit to random drug testing and to maintain stable housing.
Thus, Mother's sole issue on appeal is that the evidence was factually insufficient to support the trial court's finding that termination of her parental rights to A.L.B. and A.M.B. was in the children's best interest.
A. Standard of Review
To involuntarily terminate a parent-child relationship, DFPS was required to prove by clear and convincing evidence that the termination was in the children's best interest in addition to proving at least one of the grounds set out in section 161.001(b)(1). See id. § 161.001(b)(1); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). "Clear and convincing evidence" is 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.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
In conducting a factual-sufficiency review, we view all of the evidence, including disputed or conflicting evidence. See In re J.O.A., 283 S.W.3d at 345. We should consider whether the disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The evidence is factually insufficient only if, "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" regarding the finding under review. In re J.O.A., 283 S.W.3d at 345 (quoting In re J.F.C., 96 S.W.3d at 266).
There is a strong but rebuttable presumption that the best interest of the child will be served by preserving the parent-child relationship. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In re K.P., 498 S.W.3d 157, 172 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). 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. 2017).
The Family Code and the Texas Supreme Court have both enumerated factors to be considered in determining a child's best interest, including, among others: the child's age and physical and mental vulnerabilities; the frequency and nature of out-of-home placements; the magnitude, frequency and circumstances of harm to the child, including current and future danger to the child; whether there is a history of substance abuse by the child's family; the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; the child's family's demonstration of adequate parenting skills, including providing the child and other children under the family's care with minimally adequate health and nutritional care, guidance and supervision, and a safe physical home environment; the stability of the home or proposed placement; and the parent's acts or omissions indicating an improper parent-child relationship and any excuses for the acts or omissions. See id. § 263.307(b); In re R.R., 209 S.W.3d at 116; Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
This is not an exhaustive list, and a court need not have evidence on every element listed in order to make a valid finding as to the child's best interest. See In re C.H., 89 S.W.3d at 27. The evidence supporting the statutory grounds for termination may also be used to support a finding that the best interest of the child warrants termination of the parent-child relationship. Id. at 28; In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). Furthermore, the best interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence. See In re N.R.T., 338 S.W.3d at 677.
B. Analysis
Extensive evidence supports the trial court's best interest finding with regard to A.L.B. and A.M.B. There was evidence, spanning several years, that Mother had been unable to maintain a stable living environment, that she had continued to engage in substance abuse, and that she failed to take action to address ongoing mental health issues.
Regarding the children's ages and physical and mental vulnerabilities, A.L.B. and A.M.B. were six and five, respectively, at the time of trial. Thus, the children's young ages render them vulnerable if left in the custody of a parent unable or unwilling to protect them or to attend to their needs. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371-72; In re J.G.M., No. 04-15-00423-CV, 2015 WL 6163204, at *3 (Tex. App.—San Antonio Oct. 21, 2015, no pet.) (mem. op.).
Evidence regarding the circumstances of harm to the children, including current and future danger to the child and the family's history, especially Mother's history with DFPS, her history of substance abuse, and her criminal history, also weighs in favor of the trial court's best-interest finding. Mother lost parental rights to three older children, including A.A.B. DFPS removed A.L.B. and A.M.B. from Mother's care after police were called to respond to a domestic disturbance in which Mother struck Father and was "out of control" after being arrested for public intoxication. The motel room where the family was living was in "deplorable" condition and was not a fit residence for the children. Throughout the case involving A.L.B. and A.M.B., Mother failed to maintain adequate, stable housing, as the evidence showed Mother had at least five different residences during the time the case was pending, and none of them were appropriate for children. Adams v. Tex. Dep't of Family & Protective Servs., 236 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (parent's history of failing to provide children with stable and nurturing environment demonstrates termination of parental rights in best interest of children).
Mother continued to test positive for drug use or failed to submit to drug tests. See In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding that "[a] factfinder reasonably could infer that [a parent's] failure to submit to the court-ordered drug screening indicated she was avoiding testing because she was using drugs"); In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (concluding that past and ongoing drug use weighed in favor of conclusion that termination of parental rights is in child's best interest).
Mother also argues that the trial court could not have considered the evidence of the drug test results without the testimony of an expert witness. However, she did not raise this objection to the evidence at trial, see TEX. R. APP. P. 33.1(a), and she cites no authority indicating that expert testimony was required under these circumstances.
The evidence demonstrated a history of Mother's engaging in domestic violence, and it demonstrated that Mother also engaged in criminal activity that resulted in convictions and short confinements in jail for various offenses ranging from theft to prostitution and criminal trespass. See, e.g., In re J.D., 436 S.W.3d 105, 119 (Tex. App.—Houston [14th Dist.] 2014, no pet.) ("A parent's inability to provide adequate care for her children, unstable lifestyle, lack of a home and income, lack of parenting skills, and poor judgment may be considered when looking at the children's best interest."); In re T.G.R.-M., 404 S.W.3d 7, 15 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (noting that each time mother was jailed, she was absent from child's life and unable to provide for child's physical and emotional needs); In re J.T.I.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ("Domestic violence, want of self control, and propensity for violence may be considered as evidence of endangerment.").
Mother never demonstrated a willingness or ability to make positive changes, despite multiple interactions with DFPS. See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (holding that findings that parent failed to complete court-ordered services can support best interest finding). Mother's testimony at trial demonstrated that she failed to recognize the impropriety of the environment to which she subjected the children. She did not believe that she had any substance abuse problems, despite the fact that she repeatedly tested positive for cocaine use. She did not believe that she had any mental health issues, despite the recommendation made following her psychiatric evaluation, and she refused to seek treatment for her mental illness. See In re J.I.T.P., 99 S.W.3d at 845 (considering parent's mental health and noncompliance with her medication schedule as factors in endangering child).
Mother argues that DFPS's goal of obtaining a permanent placement for A.L.B. and A.M.B. "could have been achieved for the children without taking the drastic step of terminating her parental rights." She also argues that the evidence shows that she made "significant progress to becoming a better parent" and had completed most of her family service plan and had been living in an apartment for seven months at the time of trial. Mother acknowledges that the apartment was not suitable for children but argues that it shows some stability after her stays in an emergency shelter and at Star of Hope. However, Mother's arguments on this point ignore Carlson's testimony that, based on her investigation with the leasing office, Carlson was unsure how much longer Mother would be able to remain in her current apartment. And Mother's lease for this apartment also listed J.W., a man who Mother testified engaged in domestic violence. Thus, this evidence does not demonstrate, as Mother argues it does, any significant improvement in Mother's living situation. And even if it did, improvements of short duration do not necessarily negate a long history of irresponsible choices. See In re J.O.A., 283 S.W.3d at 346.
Mother also argues that she visited the children regularly and that she and the children were bonded with each other. Mother argues that the children's desires weigh against the trial court's best interest finding because they were happy to see her during visits and there was no evidence they wanted Mother's rights to be terminated. However, the children, who were five and almost seven at time of trial, did not testify regarding their desires and there was no evidence regarding their level of maturity to form an opinion on the appropriateness of reunifying with Mother. See In re D.W., 445 S.W.3d 913, 926 (Tex. App.—Dallas 2014, pet. denied) (holding that child's preference should not be considered absent showing of sufficient maturity); In re M.H., 319 S.W.3d 137, 150 (Tex. App.—Waco 2010, no pet.) (holding that child's desires are relevant only to extent he possesses sufficient maturity to express opinion regarding reunification). And evidence that A.L.B. and A.M.B. love Mother and enjoyed their visits with her does not outweigh the evidence of Mother's endangering conduct and unsuitability as a parent. In re D.W., 445 S.W.3d at 926 (holding that child's love for parent and enjoyment of visits is "only marginally relevant" to best-interest determination); see also W.D. v. Tex. Dep't of Family & Protective Servs., No. 03-14-00581-CV, 2015 WL 513267, at *6 (Tex. App.—Austin Feb. 5, 2015, no pet.) (mem. op.) (stating that even when children's desires arguably weigh in favor of allowing parent to retain her parental rights, factfinder may still reasonably conclude termination was in children's best interest when record demonstrated that parent could not provide for children's safety, would not take advantage of programs designed to help her, lacked appropriate parenting skills, and had no excuse for her prior acts and omissions).
Finally, all of the evidence regarding the children's bond with Mother must also be weighed against the evidence that they are bonded with their paternal grandparents and that they want to live with the paternal grandparents. Mother points to concerns about the children's potential placement with the paternal grandparents, due to the grandparents' ages and alleged lack of evidence of the grandparents' parental abilities or eligibility to adopt. However, Carlson testified that DFPS had evaluated the paternal grandparents and found them to be proper guardians who could care for the children and who wanted to adopt them. Furthermore, the grandparents were prepared to arrange for visits between A.L.B. and A.M.B. and their older sister, A.A.B., with whom they were bonded. Carlson further testified that DFPS had a plan to transition the children into their grandparents' care as soon as DFPS could obtain the trial court's approval for the placement. Thus, contrary to Mother's assertion, there was no evidence that the paternal grandparents could not provide a proper and permanent home for A.L.B. and A.M.B. See, e.g., TEX. FAM. CODE ANN. § 263.307(a) (providing that prompt and permanent placement of child in safe environment is presumed to be in child's best interest); In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.) (recognizing "the need for permanence" and importance of establishing safe and stable home).
In light of the foregoing evidence, we cannot conclude that the disputed evidence is so significant that the trial court could not reasonably have formed a firm belief or conviction that termination of Mother's parental rights to A.L.B. and A.M.B. was in the children's best interest. See In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266. Accordingly, we conclude that the evidence was factually sufficient to support the trial court's finding and, thus, its decree of termination.
We overrule Mother's sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Brown, and Lloyd.