Opinion
No. 04-16-00698-CV
03-22-2017
IN THE INTEREST OF R.R.A., a Child
MEMORANDUM OPINION
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2015PA02475
Honorable Charles E. Montemayor, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice AFFIRMED
M.A. appeals the trial court's order terminating his parental rights to his son, R.R.A. On appeal, M.A. argues that the evidence was legally and factually insufficient to support the trial court's findings that he committed a predicate act required for termination and that termination was in his son's best interest. We affirm the trial court's order.
BACKGROUND
On November 25, 2015, the Texas Department of Family and Protective Services filed a petition for protection of a child, for conservatorship, and for termination in a suit affecting the parent-child relationship. The suit requested termination of M.A.'s and J.W.'s parental rights to their son, R.R.A. The case proceeded to a bench trial on October 20, 2016.
J.W. did not appeal the trial court's order terminating her parental rights.
Stacy Jolliffe, the removing caseworker, testified that at the time of his removal from his parents' care, R.R.A. was four years old. According to Jolliffe, the Department began investigating the family due to reports of R.R.A.'s mother, J.W., being homeless, appearing to be under the influence of drugs, and having psychiatric issues. J.W. admitted to drug use and told the caseworker that she and M.A. "were engaging in Ice together." J.W. denied being a victim of domestic violence but after she was admitted to the hospital with a swollen jaw and black eye, she did admit that there was a domestic violence problem. At the time the Department sought removal of R.R.A., J.W. was residing at the Battered Women's Shelter. She refused to cooperate with the Department, and shortly thereafter absconded to California with R.R.A. and M.A.
Glory Bishop, the current legal caseworker, testified that M.A. was absent for most of the case and refused to do any of the services on his court-ordered service plan. M.A. did not visit with the child. M.A. had recently—approximately one month prior to trial—asked for services to be set up in Odessa where he was residing. Bishop stated that she attempted to email a letter outlining the services, but the email address M.A. had provided was incorrect. Bishop then mailed the letter to M.A. via certified mail and also texted and called M.A., but at the time of trial, had not heard back from him. She did, however, receive confirmation that M.A. had received the letter. Bishop was not able to substantiate whether M.A. used drugs or whether he inflicted domestic violence on J.W.
Bishop testified that upon R.R.A.'s return to San Antonio, he was placed with his maternal grandmother, who had also adopted his older brother. She stated that R.R.A. was doing well there—doing good in school and interacting well with this older brother and cousins who also reside in the home. On cross-examination, Bishop stated that before the Department filed its petition for termination, R.R.A. was behind on his vaccinations and suffered from a crossed eye. Under the care of his grandmother, R.R.A.'s vaccinations were up to date and he was being treated by an optometrist for his eye.
M.A. testified that he currently resides in Odessa but was living in San Antonio in the fall of 2015. He stated that he had not used illegal drugs in the past year and denied engaging in domestic violence with J.W. He stated that he moved to California to give J.W. a fresh start. M.A. claimed that he was unaware the Department was investigating the family prior to the move to California. He testified that he was not trying to hide from the Department and had applied for health insurance for the child and for food stamps. He also attempted to get medical care for R.R.A. while in California, including physicals and an eye exam. He last saw R.R.A. at the end of February 2016 and had not tried to visit with him since because he felt like his rights had been violated. M.A. did not understand why R.R.A. had been removed from his care and stated that he was never served with any papers. M.A. stated that he missed his son, but he refused to do what the Department asked of him because "it's all wrong" and he should have had the opportunity to present his case.
Tammy M., R.R.A.'s maternal grandmother, testified that in August of 2015, her daughter, J.W., came to her with issues of domestic violence. J.W. was constantly texting her about it. Tammy stated that J.W. and M.A. were wandering around from motel to motel and there was an incident in August 2015 where Tammy had to take J.W. to the hospital. J.W. thought M.A. "was shooting her up while she was [a]sleep." Tammy observed that J.W. had a black eye and stated that J.W. often told her M.A. was physically abusing her. Tammy stated that both M.A. and J.W. knew the Department was investigating them before "they ran to California." J.W. called Tammy saying M.A. had kidnapped her, but Tammy could not say whether that was true. Tammy explained that J.W. was not "of sound mind. She does have mental issues." Tammy further explained that J.W. had been diagnosed as bipolar and schizo-affective, and also suffered from memory lapses due to chemotherapy treatment and radiation. Tammy stated that if both parents' parental rights were terminated, she was willing to adopt R.R.A.
After hearing all the evidence, the trial court signed an order terminating M.A.'s parental rights to R.R.A. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O), (P) (West Supp. 2016). The trial court also found that termination of M.A.'s parental rights was in the child's best interest. M.A. now appeals, arguing the evidence is legally and factually insufficient to support the trial court's findings that he committed a predicate act required for termination and that termination was in R.R.A.'s best interest.
DISCUSSION
Parental rights may be terminated only upon proof of clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(b)(1) of the Texas Family Code, and (2) termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016). Under the clear-and-convincing-evidence standard, evidence is legally sufficient if it is "such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof." In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002); see TEX. FAM. CODE ANN. § 101.007 (West 2014) (defining clear and convincing evidence). We review "the evidence in the light most favorable to the judgment," meaning that we "must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." In re J.F.C., 96 S.W.3d at 266. "If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient." Id. "In a bench trial, the trial court, as factfinder, is the sole judge of the credibility of the witnesses." HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
When a parent challenges the factual sufficiency of the evidence on appeal, we look at all the evidence, including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). "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, then the evidence is factually insufficient." Id. In reviewing termination findings for factual sufficiency, we give due deference to the factfinder's findings and do not supplant its judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
I. Predicate Termination Ground
"Only one predicate finding under section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Here, the trial court based the termination of M.A.'s parental rights on the predicate grounds of constructive abandonment, failure to comply with a court order, and use of a controlled substance in a manner that endangered the health or safety of the child. See TEX. FAM. CODE. ANN. § 161.001(b)(1)(N), (O), (P) (West Supp. 2016). On appeal, M.A. does not challenge the trial court's finding that he "failed 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." Id. § 161.001(b)(1)(O). This unchallenged finding is sufficient to support the order of termination provided that the evidence is legally and factually sufficient to support the best interest finding. See In re S.F, 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.); Perez v. Tex. Dep't of Protective & Regulatory Servs., 148 S.W.3d 427, 434 (Tex. App.—El Paso 2004, no pet.). We need not consider M.A.'s arguments as to the other grounds. See In re A.V., 113 S.W.3d at 362. We overrule M.A.'s first issue.
II. Best Interest of the Child
M.A. next argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of his parental rights was in his son's best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2016). A strong presumption exists that the best interest of the child is served by keeping the child with his natural parent, and the burden is on the Department to rebut that presumption. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, there is also a presumption that 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. 2016). The factors the trier of fact may use to determine the best interest of the child include: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons seeking custody; (5) the programs available to assist those persons seeking custody in promoting the best interest of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); see also TEX. FAM. CODE ANN. § 263.307(b) (listing factors to consider in evaluating parent's willingness and ability to provide the child with a safe environment).
The Holley factors focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). M.A. argues that no credible evidence was adduced concerning several of the Holley factors. However, the list of factors set out above is not exhaustive; some listed factors may not apply to some cases, while other factors not on the list may also be considered when appropriate. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the child's best interest. Id. Conversely, scant evidence relevant to each Holley factor will not support such a finding. Id. The burden of proof is upon the party seeking termination of parental rights. In re J.F.C., 96 S.W.3d at 265-66.
A. Child's desires and plans for the child
The first Holley factor, the child's desires, is neutral or slightly favors termination of M.A.'s parental rights. R.R.A. was five years old at the time of trial and was too young to testify about his desires. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston [1st Dist.] 2013, no pet.). "The young age of the child render[s] consideration of the child's desires neutral." In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2012, no pet.). However, there was some evidence to show that R.R.A. was doing very well with his maternal grandmother who wished to adopt him, whereas M.A. had not visited with R.R.A. for the approximately eight-month period prior to trial. The sixth Holley factor, plans for the child by the person seeking custody, is related to the first factor and weighs in favor of the court's order. There was no specific evidence as to M.A.'s plans for R.R.A.
B. Needs of the child, M.A.'s parenting abilities, and stability of the home
The second, fourth, and seventh Holley factors are all related in our consideration of the best interests of the child. The second factor considers current and future physical and emotional needs, while the fourth considers the parental abilities of the person seeking custody. The evidence showed that R.R.A'.s needs were being met by his maternal grandmother, and that he was doing well in her care. This is some evidence that R.R.A.'s current and future emotional and physical needs would be appropriately met by termination of M.A.'s parental rights. Conversely, there was no evidence that M.A. provided any material support to the child during the pendency of litigation.
The seventh Holley factor is the stability of the home, and to the extent that factor is commonly interpreted to encompass a parent's ability to provide the child with food, clothing, and shelter, see T.G.R.-M., 404 S.W.3d at 17, it would appear to weigh in favor of termination. There was evidence that J.W. and M.A. moved from motel to motel with the child. After R.R.A. was returned from California, M.A. failed to keep the Department apprised of his address. The Department was thus unable to verify whether M.A. could provide R.R.A. with a safe and secure home environment.
C. Physical danger to the child
The third factor is the current and future physical danger to the child. Holley, 544 S.W.2d at 371-72. Although he denied it, there was some evidence that M.A. engaged in drug use and domestic violence. This factor weighs in favor of termination.
D. Availability of assistance
The fifth Holley factor is whether programs are available to assist the person seeking custody in promoting the best interests of the child. M.A. refused to participate in any services offered by the Department and ordered by the court. The caseworker testified that M.A. was wholly uncooperative throughout the pendency of the case. This factor weighs in favor of termination. See In re J.K.V., 485 S.W.3d 202, 207 (Tex. App.—Texarkana 2016, no pet.) (parent's refusal to sign or work service plan is evidence that may be considered in best interest analysis).
E. Parental acts and omissions
Finally, we consider the eighth and ninth factors together. These factors consider acts or omissions of the parent that indicate the parent-child relationship is improper, as well as any excuses therefor. Holley, 544 S.W.2d at 372. The majority of the testimony in this case centered on M.A. being the perpetrator of domestic violence; the caseworkers and the maternal grandmother testified that M.A. physically abused J.W. M.A. denied the allegation, but it was for the trial court as finder of fact to resolve this disputed question of fact based on its determination of the credibility of the witnesses. See HTS Servs., 190 S.W.3d at 111. We defer to the trial court's inherent assessment of credibility in favor of the caseworkers and maternal grandmother. See id.
The evidence raised a significant omission for which there is no evidence of an excuse. M.A. refused to work toward completion of his family service plan despite knowing that failure to do so could result in termination of his parental rights. By refusing to work on the family service plan services, he deprived R.R.A. of an opportunity to visit with him and subjected him to the risk of termination of his father's parental rights. This is not a case of "a parent's imperfect compliance with the plan." In re S.M.R., 434 S.W.3d 576, 584 (Tex. 2014). M.A. did not "fall short of strict compliance with a family-service plan's requirements," but rather simply refused to work any services at all. See id. His only excuse for this omission was that he believed he should not have been required to comply with the court-ordered family service plan prepared by the Department.
Viewing all the evidence in the light most favorable to the judgment, we conclude that a factfinder could have formed a firm belief or conviction that termination of M.A.'s parental rights was in R.R.A.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.F.C., 96 S.W.3d at 265-66. Viewing the same evidence in a neutral light, the disputed evidence is not so significant as to prevent a factfinder from forming a firm belief or conviction that termination of M.A.'s parental rights was in R.R.A.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.F.C., 96 S.W.3d at 265-66. Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court's finding that termination of M.A.'s parental rights was in R.R.A.'s best interest. We overrule M.A.'s final issue.
CONCLUSION
Having overruled M.A.'s issues on appeal, we affirm the trial court's order terminating M.A.'s parental rights.
Rebeca C. Martinez, Justice