Opinion
04-24-00208-CV
07-31-2024
IN THE INTEREST OF O.L.W., a Child
From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2023PA00365 Honorable Raul Perales, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Beth Watkins, Justice Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Beth Watkins, Justice
Appellant A.F. challenges the trial court's order terminating her parental rights to her child, O.L.W. (born 2023). A.F. argues the evidence is legally and factually insufficient to support the trial court's finding that termination is in the child's best interest. 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
On March 15, 2023, the Texas Department of Family and Protective Services removed O.L.W. from the hospital where he was born because he tested positive for methamphetamines at birth. The Department obtained temporary managing conservatorship over O.L.W., placed him with a foster family, and filed a petition to terminate the parental rights of both A.F. and O.L.W.'s father, J.L.W. The Department also created a family service plan requiring A.F. to, inter alia, complete a parenting course and submit to random drug testing, drug treatment, and a psychosocial evaluation as conditions of reunification. The Department ultimately pursued termination of A.F.'s and J.L.W.'s parental rights.
On February 12, 2024, eleven months after removal, the trial court held a one-day bench trial. A.F. did not personally appear, but she was represented by counsel. The trial court heard testimony from a single witness, Department caseworker Christa Kelley, and it admitted four documents, including A.F.'s service plans, into evidence. On February 16, 2024, the court signed an order terminating A.F.'s parental rights pursuant to Texas Family Code section 161.001(b)(1)(E), (O), and (R) and its finding that termination of A.F.'s parental rights was in O.L.W.'s best interest. A.F. appealed.
The trial court also terminated J.L.W.'s parental rights. He is not a party to this appeal.
Analysis
A.F. challenges only the legal and factual sufficiency of the evidence on which the trial court relied to conclude that termination was in O.L.W.'s best interest. She does not challenge the sufficiency of the evidence to support the trial court's predicate findings under section 161.001(b)(1)(E), (O), and (R). See Tex. Fam. Code Ann. §§ 161.001(b)(1)(E) (parent engaged in conduct or knowingly placed child with persons who engaged in conduct which endangered child's physical or emotional well-being), (O) (parent failed to comply with court-ordered service plan), 161.001(b)(1)(R) (parent was cause of child being born addicted to alcohol or controlled substance); see also Tex. Fam. Code Ann. § 161.001(a) (defining "born addicted to alcohol or a controlled substance"). Accordingly, we must accept those unchallenged findings as true. See In re S.J.R.-Z., 537 S.W.3d 677, 682 (Tex. App.-San Antonio 2017, pet. denied).
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." Id. at 683 (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 A.F.'s parental rights and that termination was in O.L.W.'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- 64 (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. See id. The factfinder is the sole judge of the weight and credibility of the evidence. Id. at 346. This is because "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.).
Best Interest
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). In analyzing these factors, the court focuses on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective & Regul. Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ).
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.). Additionally, 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). Furthermore, in determining whether termination of the parent-child relationship is in the best interest of a child, a factfinder may judge a parent's future conduct by her past conduct. In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). Finally, we presume that 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).
Application
In support of its petition to permanently sever the relationship between A.F. and her child, the Department presented the testimony of one witness, and the trial court admitted four documents into evidence. The entire reporter's record of the trial consists of twenty-one pages-including the cover pages and court reporter's certification-and contains only eleven pages of testimony to forever terminate the rights of both parents.
Because "[d]ue process requires meaningful appellate review of orders terminating parental rights," this court has repeatedly expressed concerns about underdeveloped records in parental termination appeals See In re ZRM, 665 S.W.3d 825, 829 n6 (Tex App-San Antonio 2023, pet denied); In re NLS, No 04-23-00251-CV, 2023 WL 4338949, at *7 n9 (Tex App-San Antonio July 5, 2023, no pet) (mem op) ("In this case in which the parental rights of the parents of four children were terminated, the reporter's record from the trial is a scant forty-three pages long, of which actual testimony is only about thirty-one pages"); In re GM, No 04-19-00080-CV, 2019 WL 3432088, at *3 (Tex App-San Antonio July 31, 2019, pet denied) (mem op) (Watkins, J, concurring); see also, e.g., In re N.M.R., No. 04-22-00032-CV, 2022 WL 3640223, at *9 (Tex. App.-San Antonio Aug. 24, 2022, pet. denied) (mem. op.) ("The record evidence falls short of the requisite legal standard and fails to support termination of Mother's parental rights."); In re M.A.D.V., No. 04-22-00131-CV, 2022 WL 3372416, at *10-12 (Tex. App.-San Antonio Aug. 17, 2022, no pet.) (mem. op.) (reversing termination order and rendering judgment denying Department's petition for termination of father's rights on sufficiency grounds); In re J.R.M., 647 S.W.3d 461, 469 (Tex. App.-San Antonio 2022, no pet.) (Rodriguez, J., dissenting) ("Because the long-term effects on a child whose relationship is forever and irrevocably severed from their parent are at stake, I urge the trial court and the parties to more completely develop the trial evidence in the future so that the depth of the appellate record is commensurate with the finality and gravity of parental termination."); In re E.F., 591 S.W.3d 138, 150 (Tex. App.-San Antonio 2019, no pet.) (Chapa, J., dissenting) ("Looming deadlines and overcrowded dockets cannot justify shortcuts that undermine the truth-seeking function of our courts."); In re K.M.J., Nos. 04-18-00727-CV & 04-18-00728-CV, 2019 WL 1459565, at *1 (Tex. App.-San Antonio Apr. 3, 2019, pet. denied) (mem. op.) ("[W]e cannot say that the 'degree of proof' rose to the level of 'clear and convincing' as required to support the best interest findings."); In re M.A.S.L., No. 04-18-00496-CV, 2018 WL 6624405, at *5 (Tex. App.-San Antonio Dec. 19, 2018, no pet.) (mem. op.) (reversing termination order supported by legally and factually insufficient evidence where caseworker had no contact with father, did not meet with father to discuss family service plan, and had "no idea" whether he completed services); In re R.M.P., No. 04-17-00666-CV, 2018 WL 2976451, at *12 (Tex. App.-San Antonio June 13, 2018, pet. denied) (mem. op.) (Martinez, J., dissenting) ("'The law sets a high evidentiary bar for termination of parental rights. We do not alleviate the plight of Texas foster children by lowering that bar and perpetuating diminished judicial expectations of the proof that must be presented by the Department.'") (quoting In re B.D.A., 546 S.W.3d 346, 393 (Tex. App.- Houston [1st Dist. 2018, pet. denied) (Massengale, J., dissenting on reh'g)); In re J.A.J., No. 04-14-00684-CV, 2014 WL 7444340, at *3 (Tex. App.-San Antonio Dec. 31, 2014, no pet.) (mem. op.) ("[W]e may exercise our broad discretion to remand for a new trial in the interest of justice when there is a probability that a case has not been fully developed for any reason."); In re D.M., 452 S.W.3d 462, 475 (Tex. App.-San Antonio 2014, no pet.) (Martinez, J., dissenting) ("We are duty bound to carefully scrutinize termination proceedings and must strictly construe involuntary termination statutes in favor of the parent."); In re U.B., No. 04-12-00687-CV, 2013 WL 441890, at *2 (Tex. App.- San Antonio Feb. 6, 2013, no pet.) (mem. op.) (finding the evidence legally insufficient to support the termination order but remanding the cause for a new trial in the interest of justice under Tex.R.App.P. 43.3(b)); In re A.Q.W., 395 S.W.3d 285, 290-91 (Tex. App.-San Antonio 2013, no pet.), overruled on other grounds by In re J.M.T., 617 S.W.3d 604, 610-11 (Tex. App.-San Antonio 2020, pet. denied) (en banc) (finding the evidence legally insufficient because the record did not support the State's argument that father had been jailed repeatedly or been in and out of drug treatment). Notably, all these cases were tried in Bexar County.
Even on this paltry record, however, the applicable standard of review requires us to conclude the evidence is legally and factually sufficient to support the best interest finding. The evidence showed the Department removed O.L.W. because he tested positive for methamphetamines at birth, and that evidence formed the basis for one of the trial court's unchallenged predicate grounds for termination. See Tex. Fam. Code § 161.001(b)(1)(R). While the evidence supporting this finding is not dispositive of O.L.W.'s best interest, it is probative on that question. In re C.H., 89 S.W.3d at 28.
A parent's illegal drug use-including a mother's illegal drug use during pregnancy-is relevant to multiple best-interest considerations, both statutory and Holley factors, such as a child's emotional and physical needs now and in the future, a parent's parental abilities, stability of the home, and a parent's acts or omissions pertinent to determining whether the parent-child relationship is improper. See Holley, 544 S.W.2d at 371-72; see also Tex. Fam. Code § 263.307(b)(8) (trial court may consider parent's history of substance abuse in best-interest determination); In re K.N., No. 02-13-00062-CV, 2013 WL 3325104, at *6 (Tex. App.-Fort Worth June 27, 2013, no pet.) (mem. op.) (considering mother's drug use during pregnancy in best-interest determination). This is because "drug use can destabilize the home and expose children to physical and emotional harm if not resolved." In re A.L.S., 660 S.W.3d 257, 275-76 (Tex. App.-San Antonio 2022, pet. denied). The trial court could properly give "great weight" to evidence of A.F.'s drug-related conduct, and it could have reasonably concluded that A.F.'s use of methamphetamines during her pregnancy supported a finding that termination was in O.L.W.'s best interest. In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.-Houston [14th Dist.] 2016, pet. denied) (internal quotation marks omitted); see also In re K.N., 2013 WL 3325104, at *6; In re A.M.O., No. 04-17-00798-CV, 2018 WL 2222207, at *2 (Tex. App.-San Antonio, May 16, 2018, no pet.) (mem. op) ("A parent's illegal drug use supports a finding that termination of the parent-child relationship is in the best interest of the child.").
Kelley also testified that J.L.W. did not comply with the drug testing and treatment requirements of his service plan. While J.L.W. is not an appellant here, the evidence showed he and A.F. were still a couple and shared a residence at the time of trial. See Tex. Fam. Code § 263.307(b)(8) (trial court may consider history of substance abuse by "child's family or others who have access to the child's home").
Furthermore, after O.L.W. was born and the Department removed him, A.F. did not submit to the random drug tests required by her service plan and the court's temporary order following adversary hearing. Like illegal drug use, failure to submit to drug testing-through which the trial court could infer illegal drug abuse-is relevant to multiple best-interest considerations. In re A.M.L., No. 04-19-00422-CV, 2019 WL 6719028, at *4 (Tex. App.-San Antonio Dec. 11, 2019, pet. denied) (mem. op); see In re R.S., No. 01-20-00126-CV, 2020 WL 4289978, at *7 (Tex. App.-Houston [1st Dist.] July 28, 2020, no pet.) (mem. op.) ("The trial court could have reasonably inferred that the father was still using methamphetamine, or some other illegal drug, based on his failure to take court-ordered drug tests."); In re E.R.W., 528 S.W.3d 251, 265 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (concluding factfinder could reasonably infer parent's failure to submit to court-ordered testing indicated parent avoided testing in an effort to conceal continued drug use). Based on A.F.'s failure to submit to drug tests during this case, the trial court could have reasonably found that she was using illegal drugs. See Tex. Fam. Code § 263.307(b)(8).
In addition to the missed drug tests, Kelley testified that A.F. failed to complete the drug treatment and individual counseling requirements of her service plan. She also testified that A.F.'s communication with her during the case was "[v]ery sporadic." The trial court could have reasonably inferred that A.F. lacked parental abilities, including the motivation to seek out and use available resources, based on her lack of engagement and failure to commit to the service plan. See In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.-Houston [1st Dist.] 2017, pet. denied) ("A fact finder may infer from a parent's failure to take the initiative to complete the services required to regain possession of his child that he does not have the ability to motivate himself to seek out available resources needed now or in the future."); see also Tex. Fam. Code § 263.307(b)(10) (reviewing willingness/ability of child's family to seek out/accept/complete counseling services and to cooperate with/facilitate an appropriate agency's close supervision as part of best-interest determination); Tex. Fam. Code § 263.307(b)(11) (reviewing willingness/ability of child's family to effect positive environmental/personal changes in a reasonable time).
As noted above, Kelley testified that A.F. completed the parenting class required by her service plan. On appeal, A.F. argues this evidence shows she "is able to parent the child" and "is willing to work services." Kelley also testified, however, that A.F.'s parental rights to six other children had already been terminated. See In re J.C., No. 02-23-00363-CV, 2024 WL 368471, at *5 (Tex. App.-Fort Worth Feb. 1, 2024, no pet.) (mem. op.) (considering evidence of prior termination in best interest analysis); In re J.E.R., No. 04-19-00566-CV, 2020 WL 690642, at *3 (Tex. App.-San Antonio Feb. 12, 2020, pet. denied) (mem. op.) (same). While the record does not indicate the reasons for those prior terminations, the trial court could have found they were significant where, as here, Kelley testified that she did not believe A.F. understood the reasons for O.L.W.'s removal. See In re J.A.R.R., No. 04-22-00184-CV, 2022 WL 4362464, at *9 (Tex. App.-San Antonio Sept. 21, 2022, no pet.) (mem. op.) (considering evidence that parent "did not take responsibility for the conditions that led to the children's removal"); see also Tex. Fam. Code § 263.307(b)(12). Kelley testified, for example, that when she explained what A.F. needed to do to achieve reunification with O.L.W., A.F. would initially indicate that she understood but "the conversation was always deflected and [A.F.] started talking about her other six children." See In re M.R., No. 02-19-00212-CV, 2019 WL 6606167, at *4 (Tex. App.-Fort Worth Dec. 5, 2019, no pet.) (mem. op.) (considering department investigator's testimony that parent "would answer questions that weren't asked or she would change the subject"). Based on this evidence, the trial court could have reasonably found that A.F. did not have the necessary parenting skills to care for O.L.W. See Tex. Fam. Code § 263.307(b)(12).
Kelley testified that A.F. only visited O.L.W. seven times during the eleven months this case was open. She also testified that A.F. never provided any monetary or other support for O.L.W. during that time. Finally, she testified that A.F. did not provide the Department with proof of employment and did not allow the Department to inspect her home. This court has previously affirmed findings that termination was in a child's best interest based on similar evidence. See In re R.H., No. 04-17-00745-CV, 2018 WL 1831630, at *1, *3 (Tex. App.-San Antonio Apr. 18, 2018, pet. denied) (mem. op.) (affirming termination where appellant failed to provide proof of employment, "denied the Department's request to inspect her home," and "failed to visit [child] on a regular basis"); In re A.T.L., No. 04-15-00379-CV, 2015 WL 6507807, at *1, *6 (Tex. App.- San Antonio Oct. 28, 2015, pet. denied) (mem. op.) (affirming termination where evidence showed parent failed to support and did not visit child); In re M.P., 327 S.W.3d 280, 281-82 (Tex. App.- San Antonio 2010, no pet.) (affirming termination where evidence showed parent "only visited his child four times over a ten-month period").
A.F. did not testify at trial or otherwise present evidence of her plans for O.L.W. See Holley, 544 S.W.2d at 371-72 (factfinder may consider parent's or agency's plans for child). However, Kelley testified that O.L.W.'s foster family wanted to adopt him. See id.; Tex. Fam. Code § 263.307(a) (permanent placement in a safe environment is presumed to be in child's best interest).
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 A.F.'s parental rights was in O.L.W.'s best interest. In re J.F.C., 96 S.W.3d at 266. We therefore hold legally and factually sufficient evidence supports the trial court's best interest finding, and we overrule A.F.'s arguments to the contrary.
Conclusion
We affirm the trial court's order of termination.