Summary
relying on evidence parent was not employed at the time of trial and unable to provide basic necessities to support best interest finding
Summary of this case from In re T.M.A.Opinion
No. 04-17-00745-CV
04-18-2018
IN THE INTEREST OF R.H., a child
MEMORANDUM OPINION
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-01063
Honorable Richard Garcia, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
This is an accelerated appeal from the trial court's order terminating Appellant's parental rights to her son, R.H. In a single issue, Appellant challenges the sufficiency of the evidence in support of the trial court's finding that termination of her parental rights was in the child's best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2017). We affirm the trial court's Order of Termination.
BACKGROUND
At the May 3, 2017 bench trial, an investigator for the Texas Department of Family and Protective Services ("the Department") testified that the Department became involved with the family in January 2016 after a report of neglectful supervision was made. There were also allegations of drug use in the home and a report of a physical altercation between Appellant and R.H.'s father where Appellant chased him with a knife. At the time of removal, R.H. was three months old. Appellant tested positive for marijuana and amphetamines.
The legal caseworker testified that Appellant had not completed her court-ordered family service plan. She specified that Appellant had not completed drug treatment. She missed several appointments and refused most, if not all, drug tests. The caseworker stated she explained to Appellant that a refusal to test would equate to a presumption that she was using drugs. The caseworker asked Appellant to drug test on the day of trial, and Appellant became very angry and screamed at the caseworker to get away from her. In addition, Appellant failed to provide proof that she had completed a domestic violence prevention class and failed to complete individual counseling. The caseworker stated the Department attempted a trial reunification, or monitored return, between Appellant and R.H. for a period of one and a half months. During the monitored return, another caseworker went to Appellant's home and expressed some concerns for R.H.'s safety. There were cigarette butts lying around the home and a bucket of mop water that was deep enough for young R.H. to fall into. When these concerns were brought to Appellant's attention, she became upset and "explosive."
The caseworker did not believe Appellant had changed the behaviors that led to the removal of the child and had not shown she could provide a safe and stable home for the child. She stressed that Appellant refused to drug test throughout the case and that she continued to have contact with R.H.'s father, even though severe domestic violence had occurred between them. R.H.'s father was currently incarcerated and he signed an affidavit relinquishing his parental rights.
Appellant was allowed to visit R.H. weekly, but only exercised that right seven times in 24 weeks. Nonetheless, the caseworker testified that Appellant appeared to be bonded to the child. R.H. is currently residing in a foster home. The caseworker stated that Appellant does not appear to have the ability to care for the child now or in the future because at times during the case she did not have food in her home and did not have electricity during the winter. Appellant relayed to the caseworker that she was having trouble finding enough money to use the bus. The caseworker tried to work with Appellant on a budget, but Appellant refused. When the caseworker tried to address Appellant's drug use, Appellant told her she used drugs to cope with stress. The caseworker believed that during the entire case, Appellant refused to accept the Department's assistance and believed it was not her fault that R.H. had been removed from her care. The caseworker had no idea where Appellant was living; the caseworker had last visited the home on December 23, 2016, but Appellant had since refused to allow the Department to visit. Appellant had not provided proof of employment to the Department.
Appellant testified and admitted she refused to drug test before trial because "it's dirty" and "I have a problem with smoking weed." She stated she uses marijuana to cope with her stress. Appellant stated she would provide for R.H.'s needs by getting a job. She had last worked one month prior to trial. She had a lead on a new job, but was waiting to get a new identification card. She stated she completed the domestic violence course and that she showed the certificate of completion to her caseworker. She was still attending drug treatment. She stopped attending individual counseling a month ago. When asked if she had a support system should R.H. come home, she answered, no.
The child advocate volunteer testified she wrote a report in which she recommended that Appellant's parental rights be terminated. She believed Appellant's love for her son exceeded her ability to take care of him. She had concerns about Appellant's drug use and her lack of a support system. She had observed R.H. in the foster placement and believed he was doing well there and that the family wanted to adopt him.
PREDICATE FINDINGS
Appellant does not challenge the sufficiency of the evidence to support the predicate statutory grounds for terminating her parental rights. The trial court concluded there was clear and convincing evidence that Appellant constructively abandoned the child and failed to comply with the provisions of a court order specifically establishing the actions necessary for Appellant to obtain the return of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O) (West Supp. 2017).
We note that although the termination order provides that Appellant's rights were terminated under sections 161.001(b)(1)(N) and (O), the trial court stated on the record that it was not terminating under the (N) ground because there was insufficient evidence that Appellant had constructively abandoned the child.
BEST INTEREST
Appellant challenges the sufficiency of the evidence that termination of her parental rights was in the child's best interest. A trial court may order termination of the parent-child relationship only if the court finds by clear and convincing evidence one or more statutory ground for termination and that termination is in the child's best interest. Id. §§ 161.001(b)(1), (2); 161.206(a) (West Supp. 2017). There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, when the court considers factors related to the best interest of the child, "the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2017). In determining whether a child's parent is willing and able to provide the child with a safe environment, we consider the factors set forth in Family Code section 263.307(b). See id. § 263.307(b) (West Supp. 2017).
We also apply the non-exhaustive Holley factors to our analysis. 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.; In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013). Finally, evidence that proves one or more statutory ground for termination may constitute evidence illustrating that termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). A best interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence. See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). A trier of fact may measure a parent's future conduct by her past conduct and determine whether termination of parental rights is in the child's best interest. Id.
When reviewing the sufficiency of the evidence, we apply the well-established standard of review. See TEX. FAM. CODE ANN. §§ 101.007 (West 2014), 161.206(a) (West Supp. 2017); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency).
On appeal, Appellant contends many of the Holley factors were ignored at trial. A best-interest finding, however, does not require evidence concerning every Holley factor. The Texas Supreme Court has recognized "that [the Holley] considerations are [not] exhaustive [and] that [not] all such considerations must be proved as a condition precedent to parental termination." In re C.H., 89 S.W.3d at 27 (emphasis in original). "The absence of evidence about some of [the Holley] considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." Id. Therefore, while we will consider Appellant's complaint about the purported lack of evidence of some Holley factors, the ultimate question before us is whether the evidence, as a whole, is sufficient for the trial court to have formed a strong conviction or belief that termination of Appellant's parental rights was in R.H.'s best interest. See id.
R.H. was two years old at the time of trial, and unable to express his desires. Given his young age, there were concerns about Appellant's ability to provide a safe environment for the child. She admittedly continued to use drugs during the pendency of the case, and even admitted the day of trial that she would fail a drug test. See In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (noting parent's drug use supports a finding that termination is in the best interest of the child). She was not employed at the time of trial, and there was testimony that she was unable to provide basic necessities such as food and electricity. Appellant worked on her service plan but had not completed it at the time of trial, despite knowing that she was required to complete certain tasks before her child would be returned to her. See In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.) (noting failure to comply with family service plan supports finding that termination is in child's best interest); see also In re A.H., No. 04-15-00416-CV, 2015 WL 7565569, at *9 (Tex. App.—San Antonio Nov. 25, 2015, no pet.) (mem. op.) (holding failure to complete family service plan is indicative of failure to prioritize child). Notably, Appellant failed to maintain her sobriety and to complete drug treatment and individual counseling. Appellant admitted she did not have a support system to help her with R.H. She admitted she used drugs to cope with her stress, and it was observed that she was easily angered. She became upset when safety concerns were brought to her attention and she yelled at the caseworker when asked to drug test. She denied the Department's request to inspect her home and she failed to visit R.H. on a regular basis.
Viewing the evidence related to the Holley factors in the light most favorable to the trial court's finding, we conclude the evidence is legally sufficient to support a firm belief or conviction that termination of Appellant's parental rights was in R.H.'s best interest. See Holley, 544 S.W.2d at 372; In re J.P.B., 180 S.W.3d at 573. Having given due consideration to the disputed evidence in the case, we reach the same conclusion regarding the factual sufficiency of the evidence. Any evidence favoring a decision contrary to the trial court's decision "is not so significant that no reasonable juror could have formed a firm belief or conviction" that termination of Appellant's parental rights is in the best interest of the child. See In re H.R.M., 209 S.W.3d at 108.
CONCLUSION
We overrule Appellant's sole issue on appeal and affirm the trial court's Order of Termination.
Rebeca C. Martinez, Justice