Opinion
04-21-00525-CV
05-04-2022
IN THE INTEREST OF S.R.H., a Child
From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2020PA02064 Honorable Kimberly Burley, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice, Luz Elena D. Chapa, Justice, Liza A. Rodriguez, Justice.
MEMORANDUM OPINION
LUZ ELENA D. CHAPA, JUSTICE.
Appellant K.B. appeals the trial court's order terminating his parental rights to S.R.H. K.B. challenges the sufficiency of the evidence supporting the trial court's findings regarding a predicate ground and best interest. He also challenges the trial court's appointment of the Department as permanent managing conservator. We affirm the trial court's order.
To protect the identity of the minor child in this appeal, we refer to the parent and child by their initials. See Tex. Fam. Code Ann. § 109.002(d); Tex.R.App.P. 9.8(b)(2).
Background
On October 8, 2020, the Texas Department of Family and Protective Services filed a petition for conservatorship of S.R.H. and termination of K.B.'s parental rights. The record shows the Department removed eight-year-old S.R.H. from her mother's care because her mother had substance abuse issues and was in a relationship with domestic violence. At the time of removal, K.B. was incarcerated and serving a five-year sentence for injuring a child. The Department placed S.R.H. with a foster family and created service plans for both parents.
The Department also sought termination of S.R.H.'s mother's parental rights, and her rights were ultimately terminated. She did not file a notice of appeal challenging the trial court's order of termination, and as a result, she is not a party to this appeal.
The case proceeded to a two-day bench trial on September 29, 2021 and October 22, 2021. At the time of trial, S.R.H was almost nine years old, and K.B. was on parole. The trial court heard testimony from two Department caseworkers and K.B. It found by clear and convincing evidence K.B. constructively abandoned S.R.H., failed to comply with his service plan, and termination of K.B.'s parental rights was in S.R.H.'s best interest. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(N) & (O), 161.001(b)(2). It also appointed the Department as managing conservator of S.R.H. K.B. now appeals, arguing the evidence is insufficient to support the trial court's findings as to its predicate finding under subsection (O) of section 161.001(b)(1) and best interest. He also argues the trial court abused its discretion in appointing the Department permanent managing conservator.
Standard of Review
Under section 161.001 of the Family Code, termination of parental rights is authorized only if the trial court finds by clear and convincing evidence one of the predicate grounds enumerated in subsection (b)(1) and termination is in a child's best interest. Id. § 161.001(b). Clear and convincing evidence requires "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." Id. § 101.007. We apply a heightened standard of review to determine if this heightened burden of proof was met by judging 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. Id. at 23, 26. "[T]he trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony," and we must defer to its credibility determinations. In re J.M.G., 608 S.W.3d 51, 53-54 (Tex. App.-San Antonio 2020, pet. denied).
"When reviewing the sufficiency of the evidence, we apply the well-established [legal and factual sufficiency] standards." Id. at 53 (alteration in original) (quoting In re B.T.K., No. 04-19-00587-CV, 2020 WL 908022, at *2 (Tex. App.-San Antonio Feb. 26, 2020, no pet.) (mem. op.)). In our legal sufficiency review, we review the evidence in the light most favorable to the finding and disregard all evidence a reasonable factfinder could have disbelieved or found incredible. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We do not disregard undisputed evidence even if it does not support the trial court's finding. Id. In our factual sufficiency review, we consider the entire record and determine whether, in light of the entire record, any disputed evidence "is so significant that a factfinder could not reasonably have formed a firm belief or conviction" on the challenged finding. Id.
Predicate Statutory Finding - Subsection (O)
K.B. first challenges the sufficiency of the evidence supporting only one of the two predicate findings made by the trial court. Specifically, K.B. challenges the sufficiency of the evidence supporting the court's finding under subsection (O); however, the order of termination shows the trial court found K.B.'s parental rights should be terminated pursuant to subsections (N) and (O). "When, as here, the trial court terminates a parent's rights on multiple predicate grounds, we may affirm on any one ground." In re J.J.S., No. 04-17-00747-CV, 2018 WL 1072336, at *2 (Tex. App.-San Antonio Feb. 28, 2018, pet. denied) (mem. op.); see In re A.R.R., No. 04-18-00578-CV, 2018 WL 6517148, at *1 (Tex. App.-San Antonio Dec. 12, 2019, no pet.) (mem. op.). Therefore, a parent's failure to challenge the sufficiency of the evidence supporting all the trial court's predicate findings results in waiver of any complaint concerning the sufficiency of the evidence supporting the unchallenged findings. J.J.S., 2018 WL 1072336, at *2 (citing multiple cases). Accordingly, by failing to challenge the sufficiency of the evidence supporting the trial court's finding under subsection (N), we hold K.B. waived any complaint concerning the sufficiency of the evidence to support that finding. See id. Therefore, because the unchallenged predicate ground supports the termination of K.B.'s parental rights, we overrule K.B.'s first issue. See id.
Best-Interest Finding
K.B. next contends the evidence is legally and factually insufficient to support the trial court's best-interest finding because it did not rise to the level of clear and convincing evidence. According to K.B., the evidence does not permit a factfinder to reasonably form a firm conviction or belief that he should no longer be in S.R.H.'s life. We disagree.
Applicable Law
Determining whether termination of parental rights is in a child's best interest is a wide-ranging inquiry involving consideration of several factors provided by the Texas Legislature and Supreme Court. In re Y.W., No. 04-17-00445-CV, 2017 WL 4801673, at *4 (Tex. App.-San Antonio Oct. 25, 2017, pet. denied) (mem. op.). Section 263.307 of the Family Code provides a list of factors adopted by the Legislature to help the trial court determine whether a child's parent can provide the child with a safe environment. See Tex. Fam. Code § 263.307. Similarly, the Supreme Court recognized a non-exhaustive list known as the Holley factors to help a trial court make a best interest determination. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).Not every factor must be proven for a trial court to find that termination is in a child's best interest, and evidence of a single factor can be sufficient. C.H., 89 S.W.3d at 27; 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.). We further consider "the totality of the circumstances in light of the Holley factors" in our determination of whether sufficient evidence supports a best-interest finding. J.M.G., 608 S.W.3d at 54. This is because "[b]est interest determinations are fact-intensive." Id. (quoting In re G.A.L., No. 05-19-00844-CV, 2020 WL 582282, at *14 (Tex. App.-Dallas Feb. 6, 2020, no pet.) (mem. op.)).
These factors include: the child's age and physical and mental vulnerabilities; the frequency and nature of out-of-home placements; the magnitude, frequency, and circumstances of the harm to the child; whether the child has been the victim of repeated harm after intervention by the department; whether the child is fearful of returning to the child's home; 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; whether there is a history of abusive conduct by the child's family or others who have access to the child's home; whether there is a history of substance abuse by the child's family or others who have access to the child's home; 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; the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; whether the child's family demonstrates adequate parenting skills; and whether an adequate social support system consisting of an extended family and friends is available to the child. See Tex. Fam. Code Ann. § 263.307.
Those factors include: (1) the desires of the child; (2) the present and future emotional and physical needs of the child; (3) the present and future physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans held by the individuals seeking custody; (7) the stability of the home of the parent and the individuals seeking custody; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. See Holley, 544 S.W.2d at 371-72.
Discussion
Child's Desires, Age, and Vulnerabilities
At the time of trial, S.R.H. was almost nine years old and old enough to express her desires as to placement. Although S.R.H. did not testify directly, the trial court heard testimony from Department caseworkers Briana Booth and Shawna Ramsey regarding S.R.H.'s desires. Specifically, Booth testified S.R.H. enjoyed her current foster family placement. Booth stated S.R.H. told her she felt safe in her current placement and all her needs were being met by her foster family. Similarly, Ramsey testified S.R.H. appeared bonded to her foster family and told her she felt safe in her foster home and "loved in a way that she's never felt before." Ramsey further testified S.R.H. told her she did not want to be placed with any of her relatives and wanted to remain with her foster family. Accordingly, S.R.H.'s desires weigh in favor of termination. Emotional and Physical Needs of the Child
The Department produced evidence indicating K.B. had been absent the majority of S.R.H.'s life because he was serving a five-year sentence for a conviction for injury to a child. Booth testified when the Department removed S.R.H. from her mother's care, K.B. was incarcerated due to charges involving a minor. To her knowledge, she believed K.B.'s charges involved both sexual assault and injury to a child, and when she spoke to K.B. about the charges, he did not deny it. Booth further stated the victim was not S.R.H.
Ramsey also confirmed K.B. was incarcerated the majority of S.R.H.'s life. Ramsey specified K.B. had been incarcerated for four and a half years, and prior to his incarceration, he did not have a relationship with S.R.H. Ramsey stated while K.B. was incarcerated, he did not make any effort to have a relationship with S.R.H. She testified there is no bond between K.B. and S.R.H.
With respect to his incarceration, K.B. confirmed he pled guilty to an injury to a child charge and was sentenced to five years in prison. When asked about the charge, he testified the child involved was not S.R.H. and was approximately six or seven years old. He did not describe the injury and stated it involved "something that was going on with someone else that I was around." He testified he had to plead guilty, and he agreed to a five-year sentence. He further testified he served four and a half years of his sentence and was recently released on parole as of September 1, 2021.
Texas law is clear. "[C]riminal conduct and incarceration affects a parent's life and the ability to parent, thereby subjecting a child to potential emotional and physical danger." In re S.A.M., No. 04-18-00607-CV, 2019 WL 573469, at *5 (Tex. App.-San Antonio Feb. 13, 2019, pet. denied) (mem. op.). And as in this case, a parent's lengthy absence from a child's life during her early years due to incarceration creates an "emotional vacuum" threatening the child's emotional well-being. J.M.G., 608 S.W.3d at 57. Accordingly, because "[a] parent's incarceration is relevant to his ability to meet the child's present and future physical and emotional needs," this factor weighs in favor of termination. In re J.G.S., 550 S.W.3d 698, 706 (Tex. App.-El Paso 2018, no pet.).
Plans for the Child
The trial court also heard testimony evidencing he did not have a relationship with S.R.H. Instead, the record shows S.R.H. had a relationship with K.B.'s aunt and S.R.H.'s godmother. He testified the last time he saw S.R.H. was when she was approximately six or seven months old. He explained when S.R.H. was a baby, he watched S.R.H. while his aunt, who was caring for S.R.H. at the time, went to work. According to K.B., his aunt had temporary custody of S.R.H. when she was a baby because S.R.H.'s mother was incarcerated. It is unclear how long K.B.'s aunt had temporary custody of S.R.H. K.B. further stated his aunt's friend was S.R.H.'s godmother, and she took care of S.R.H. when she was between five and eight years old. According to K.B., sometime in 2020, S.R.H.'s mother started caring for S.R.H. again. When asked about his relationship with S.R.H, he highlighted his family's relationship with S.R.H. explaining his family loves her. He detailed, "[w]hen she sees them, she comes running to them, she gives them hugs. She loves them."
The record further shows K.B. did not have a permanency plan for S.R.H. Rather, K.B. stated he told the Department he wanted S.R.H. to be placed with his aunt or S.R.H.'s godmother while he was on parole. The record also shows the Department approved an expedited home study with respect to S.R.H.'s godmother, but the trial court heard evidence S.R.H. did not want to return to the godmother's home.
In contrast to K.B.'s plan, the Department produced evidence accomplishing permanency for S.R.H. Ramsey testified the Department's goal for S.R.H. was adoption by the current foster family who has been caring for S.R.H. for the past year and wishes to adopt S.R.H. Both Ramsey and Booth testified S.R.H. expressed interest in being adopted by her foster family.
"The need for permanence is the paramount consideration for the child's present and future physical and emotional needs." In re B.R.Q., No. 04-20-00540-CV, 2021 WL 1199044, at *4 (Tex. App.-San Antonio March 31, 2021, no pet.) (mem. op.) (internal quotation marks omitted). Here, the evidence established K.B. did not have a permanency plan for S.R.H., whereas the Department produced evidence showing S.R.H. was living with a foster family that provided a stable and loving environment. The record further shows S.R.H. expressed a desire to remain with her foster family. Accordingly, this factor weighs in favor of termination. Programs Available to Assist and Acts or Omissions
Booth testified the Department created a service plan for K.B., but she did not remember whether she filed it. Booth further stated the Department mailed the plan to K.B. in prison, but she did not receive confirmation whether he received it. She explained she discussed the plan with K.B. over the phone, and she specifically told him he needed to complete parenting classes, a drug assessment when he was released, and family violence classes. She testified he did not complete any of the plan's requirements, but she acknowledged the services were not offered during his incarceration due to COVID-19.
Conversely, K.B. testified the Department did not discuss a service plan with him when he was incarcerated. He testified he spoke to a Department caseworker once, and during that conversation, he gave the caseworker his mother's name to contact her. He stated no one advised him of a case plan, and "[t]he only thing she told me is that she was going to call my family members."
When asked whether he engaged in services after being released, K.B. testified he did not. K.B. stated when he was released, the Department did not contact him to help him reunite with S.R.H. However, he admitted he spoke to the Department while he was incarcerated, and he knew S.R.H. was in the Department's care when he was released. Despite this knowledge, he did not reach out to the Department. Moreover, Ramsey testified when K.B. was released from prison, she discovered he was living in Clarksville, and she contacted the Department's courtesy caseworker in Clarksville to ask that someone to reach out to K.B. She testified she spoke to the caseworker a week before trial and the caseworker indicated he would reach out to K.B. to review the service plan.
We have repeatedly recognized failure to comply with a family service plan supports a best-interest finding. See, e.g., In re A.F., No. 04-20-00216-CV, 2020 WL 6928390, at *3 (Tex. App.-San Antonio Nov. 25, 2020, no pet.) (mem. op.); In re J.G.C., No. 04-19-00572-CV, 2020 WL 354775, at *3 (Tex. App.-San Antonio Jan. 22, 2020, no pet.) (mem. op.); 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.). Here, the evidence concerning whether K.B. was aware of his service plan is disputed. And, even assuming K.B. was aware of the plan, the Department acknowledged K.B. could not engage in services while incarcerated because services were not being provided due to COVID-19. Moreover, in its brief, the Department concedes the evidence is insufficient to support termination under subsection O-failure to comply with service plan. Accordingly, this factor- compliance with the service plan-weighs against termination. Discussion
Here, the record shows K.B. was not present for the majority of S.R.H.'s life, and as a result, S.R.H. was subjected to a life of ongoing instability. The evidence shows when S.R.H. was an infant, K.B. was not a permanent figure in S.R.H.'s life and did not provide a stable household for her. Instead, S.R.H. was cared for by K.B.'s relatives when her mother was unable to care for her. K.B. was later incarcerated after pleading guilty to an injury of a child charge, and during his incarceration, K.B. did not express any interest in maintaining a connection with S.R.H. until the Department removed S.R.H. from her mother's care. Based on this evidence, the trial court was permitted to measure K.B.'s future conduct by his past conduct and determine termination was in S.R.H.'s best interest. In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied).
The record also shows other than temporarily placing S.R.H. with her godmother, K.B. did not have a permanency plan for S.R.H. There was also evidence after his release, K.B. was living with relatives and did not make contact with the Department to ask about S.R.H. The Department, however, established the foster family, who was caring for S.R.H. for the past year, had planned to adopt S.R.H. The evidence shows the foster family had provided a stable and loving environment for S.R.H. and could meet all her needs. Moreover, S.R.H. expressed an interest in adoption and stated she did not want to return to her godmother's house or live with any of K.B.'s relatives. In addition, the trial court recognized the importance of permanency as related to S.R.H.'s best interest and emphasized the difference between temporary placement and permanency.
K.B. argues this evidence did not rise to the level of clear and convincing evidence, yet other than a mere assertion, he does not explain how the evidence fails. The cumulative weight and substance of this evidence establishes K.B. was absent from S.R.H.'s life, did not have a bond with S.R.H., and could not provide her with a permanent and stable home. It also establishes S.R.H. was living in a stable home where she was "loved in a way that she's never felt before." In considering this evidence, the trial court was the sole judge of the weight and credibility given to the witnesses, and it was tasked with determining S.R.H.'s best interest by considering all the factors and S.R.H.'s need for permanency. See In re S.J.R.-Z., 537 S.W.3d 677, 695-96 (Tex. App.-San Antonio 2017, pet. denied). Having reviewed the record and considered all the evidence in the appropriate light for each standard of review, we conclude the evidence is sufficient to establish termination of K.B.'s parental rights was in S.R.H.'s best interest. See J.F.C., 96 S.W.3d at 266; J.M.G., 608 S.W.3d at 53-54.
Conservatorship Finding
Finally, K.B. challenges the trial court's appointment of the Department as permanent managing conservator by arguing the evidence is insufficient to support termination of his parental rights. Because we have concluded the evidence is sufficient to support both the predicate ground for termination and the best interest findings, we need not address this final issue. See In re J.M.K., No. 04-20-00387-CV, 2020 WL 7232133 (Tex. App.-San Antonio Dec. 9, 2020, no pet.) (mem. op.).
Conclusion
Based on the foregoing, we conclude the evidence is legally and factually sufficient to support the trial court's predicate ground and best-interest findings. We therefore affirm the trial court's order terminating K.B.'s parental rights to S.R.H.