Opinion
No. 04-17-00761-CV
04-25-2018
In the Interest of T.H. and G.J.A., Children
MEMORANDUM OPINION
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-02347
Honorable John D. Gabriel, Jr., Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
This is an appeal from a judgment terminating parental rights. We affirm.
BACKGROUND
On October 19, 2016, the Texas Department of Family and Protective Services filed a petition for the protection of T.H. and G.J.A. At the time, T.H. was three and a half years old and G.J.A. was almost two years old. The children's mother was Julie. T.H.'s father was Mark. G.J.A.'s father was Greg. In its petition, the Department sought to terminate Julie, Mark, and Greg's parental rights. On November 7, 8, and 9, 2017, the trial court held a trial on the Department's termination petition. After considering the evidence, the trial court rendered judgment terminating Julie, Mark, and Greg's parental rights. The trial court terminated Mark's parental rights on the statutory grounds of constructive abandonment, failure to comply with court-ordered services, and engaging in criminal conduct that resulted in the parent's conviction and confinement. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O), (Q) (West Supp. 2017). The trial court terminated Greg's parental rights on the statutory grounds of constructive abandonment, failure to comply with court-ordered services, and use of a controlled substance. See id. § 161.001(b)(1)(N), (O), (P). The trial court also found that termination of parental rights was in the children's best interest. See id. § 161.001(b)(2). Mark and Greg appealed.
We refer to the parents by fictitious names to protect the children's identities. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8.
MARK'S APPEAL
In one issue, Mark argues the evidence was legally or factually insufficient to support the trial court's finding that termination of his parental rights was in T.H.'s best interest as required by section 161.001(2) of the Texas Family Code.
Termination of parental rights under section 161.001 of the Texas Family Code requires proof by clear and convincing evidence of at least one of the grounds listed in section 161.001(b)(1)(A)-(U) and that termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001(b)(1),(2). 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 (West 2014).
In reviewing the legal sufficiency of the evidence in a parental termination case, we consider all of the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a strong belief or conviction that its finding was true. In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). "To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible." Id. If we conclude that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude the evidence is legally insufficient. Id.
When a parent challenges the factual sufficiency of the evidence on appeal, we look at all the evidence, including disputed or conflicting evidence. In the Interest of 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 have formed a firm belief or conviction, then the evidence is factually insufficient. Id.
In evaluating the child's best interest, courts consider the factors articulated in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These 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 these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which 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. Id. These factors are not all required and they are not exhaustive. In the Interest of C.H., 89 S.W.3d 17, 27 (Tex. 2008). Some of them may not apply, while other factors that are not listed may be appropriate. See id.
A best-interest analysis may consider direct and circumstantial evidence, subjective factors, and the totality of the evidence. In the Interest of E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). The mere fact that an act or omission occurred in the past does not ipso facto prove that termination is currently in the child's best interest. In the Interest of O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.). However, a court can measure a parent's future conduct by his past conduct to determine if termination is in the child's best interest. Id. A parent's inability to maintain a lifestyle free from criminal activity is relevant to determining a child's best interest. In the Interest of A.G., No. 04-15-00549-CV, 2016 WL 413342, at *2 (Tex. App.—San Antonio 2016, pet. denied). Additionally, a parent's drug abuse reflects poor judgment and may be a factor to be considered in determining a child's best interest. Id.
The trial evidence relevant to Mark and T.H. was as follows.
1. Mark's Testimony
Mark, who was in prison at the time of the trial, testified by telephone. Mark was serving a four-year sentence for a conviction for possession of a firearm by a felon. Mark said he had already served fifteen months and was in a program that put him on track to be released from prison around March or April 2018. Mark admitted he had been convicted of other crimes, including possession of a controlled substance (heroin) and family violence assault, and that he had been incarcerated for other crimes during T.H.'s life.
Mark testified that he knew he was T.H.'s father before the child was born. Mark was aware that T.H.'s mother, Julie, was incarcerated when T.H. was born. Shortly after he was born, T.H. went to live with his maternal grandmother, who had custody of T.H. until Julie was released from prison. Mark said that he had been in contact with T.H.'s grandmother and that she had sent him pictures of T.H. Although Mark knew T.H. was born about four years ago, he did not know the date or the month T.H. was born. Mark said that he had been able to spend time with T.H. after the child was born. Mark claimed that until T.H. was six months old he was there every weekend buying clothes and diapers for him and he would "pick him up occasionally." Mark said he had spent about a total of six months with T.H. until Julie was released from prison. Mark claimed that when Julie was released from prison she pushed him away. Additionally, Mark testified that he was not able to spend time with T.H. after he was six months old because Mark moved away from the city where T.H. was living to Corpus Christi, Texas. Mark said he was living in Corpus Christi when he was charged with a crime that resulted in him serving time in prison.
In his testimony, Mark vacillated about whether he was in prison in October 2016, when T.H. first came into the Department's care. Mark initially testified that he was not in prison but "on the outside" when T.H. came into the Department's care. According to Mark, Julie and T.H.'s grandmother were lying to him and telling him that everything was "okay" with T.H. However, Mark later confirmed that he went to prison in August 2016 and that T.H. came into the Department's care in October 2016. Mark admitted that had he not been in prison, he could have potentially "been there" to care for T.H.
Mark testified that the last time he had used an illegal substance was in "[m]aybe 2013." Mark said that the illegal substance was marijuana, not heroin. Despite a prior conviction for possession of heroin, Mark claimed that he did not use heroin. The heroin that resulted in his conviction had been left in his car by someone, but he did not know who that person was. Mark claimed he did not have a drug addiction from which he needed recovery.
Mark acknowledged that he had received a family service plan from the Department. Mark said he did not sign the service plan because he felt it was outdated. Mark said that he had not performed any of the services in the service plan because he was incarcerated. Mark testified that he had inquired about services during his incarceration. Mark said he was put on a waiting list for some services while he was in jail, but he was transferred to prison before these services were made available to him. Mark said that no one from the Department had visited him while he was in prison and that he had written to the Department and told them he wanted to gain reunification with T.H. Mark said he was "willing to do any kind of programs or counseling, whatever it takes to gain reunification with" T.H. Mark said that he was participating in several programs while in prison: a program called CHANGES (Changing Habits and Achieving New Goals to Empower Success) and a GED class. Mark explained that CHANGES talks about family matters, drugs, everyday life, diseases, and "all kinds of life-changing experiences." The 210-hour program consists of seven modules and takes three to four and a half months to complete. Mark claimed that after completing the CHANGES program, he will be released on parole. Mark also said that he had requested two other classes, crime prevention and recovery, and that he was on waiting lists for these classes.
Finally, Mark testified that he was the father of four other children in addition to T.H. However, Mark acknowledged that his parental rights to two of these children had already been terminated. Finally, Mark acknowledged that due to his own actions, he was presently unable to care for, support, and provide housing for T.H.
2. The Caseworker's Testimony
A Department caseworker testified that she had sent Mark the service plan in this case and he had acknowledged that he had received it. Mark returned the service plan to the caseworker, telling her that he was not going to sign it because he claimed it was outdated. The caseworker did not believe the service plan was outdated. The caseworker did not discuss the service plan with Mark in person because the prison where Mark was housed was outside of the region. Mark still had not completed the following services: parenting classes, a drug assessment, a psychosocial evaluation, individual counseling, random drug tests, safe and stable housing, and legal and stable employment. The caseworker acknowledged that it would be difficult for Mark to complete some of these services because of his incarceration. The caseworker did not know if Mark had addressed some of the items on the service plan while he was incarcerated because she did not receive proof of any of the classes Mark claimed to have taken while he was incarcerated.
The caseworker also testified that terminating Mark's parental rights was in T.H.'s best interest because Mark had been incarcerated for the last year and he had a pattern of breaking the law and being incarcerated. Mark was first incarcerated for two years and then for four years. Furthermore, there was no parent-child bond between Mark and T.H.; T.H. did not know Mark. Mark had lost his parental rights to other children and his incarcerations appeared to be a factor there. The caseworker had received a letter from Mark stating that it was unfair that he had lost his parental rights to his other children and that he should have been given an opportunity because he was in jail. According to the caseworker, Mark could be incarcerated until 2020 on his current sentence and this would substantially affect his ability to care for T.H. in the future. The caseworker indicated that in light of Mark's pattern of breaking the law and being incarcerated, he could end up in prison again. According to the caseworker, Mark had not demonstrated that he could provide a safe home for T.H.
The caseworker further testified that when T.H. went into foster care, he was underweight, underdeveloped, and in need of speech therapy. Additionally, T.H. had several cavities. However, T.H. was now thriving in foster care. T.H.'s speech had improved dramatically. T.H. was at a good weight. T.H. was doing well in school and playing T-ball. T.H. was living in the same foster home with his brother, G.J.A. Additionally, T.H.'s foster parents had expressed a willingness and a desire to adopt T.H. and G.J.A. in the event that their parents' parental rights were terminated.
3. The Foster Parent's Testimony
One of the foster parents testified that when T.H. and G.J.A. came into foster care, they were skinny, pale, and their eyes were sunken in. At mealtime, the children would "stuff food into their mouths." In response to this behavior, the foster parents taught the children to take small bites and chew. Even after eating a meal, the children would ask for more food or for a snack and they would give them more food. When the children first came into foster care, they were constantly eating, but eventually this behavior dissipated. The children were also aggressive when they first came into foster care; it was more than just "play fighting." The children would go at each other "fists on fists."
The foster parent testified that when T.H. came into foster care he was current on his immunizations, but in need of dental care. Therefore, the foster parent took T.H. to the dentist, who placed caps on four of his molars. The foster parent further testified that T.H.'s speech was delayed. T.H., who was almost four at the time, would only say: "What that?"
The foster parent believed that both of the children had made progress while in foster care. The children now had a whole repertoire of language and understood that it was dangerous to approach strangers. The children were now aware of boundaries and time-outs. Additionally, both children were now potty-trained.
The foster parent testified that if the court elected to terminate parental rights, she was willing to adopt both G.J.A. and T.H. and was fully committed to doing so.
4. The CASA Volunteer's Testimony
The CASA volunteer testified that she believed Mark's rights should be terminated because he had not had any involvement with T.H. since the child was six months old. The CASA volunteer further pointed out that Mark was currently in prison and he was a repeat felon. The CASA volunteer testified that she had visited T.H. and G.J.A. in their foster home, which she described as an "incredibly stable home." The CASA volunteer felt that T.H.'s foster parents went above and beyond what was required of them. For example, the children had been in an approved daycare, but when the foster parents had concerns about the daycare, they worked with the Department to find a better daycare for T.H. and G.J.A. The foster parents contacted the CASA volunteer on a regular basis to give her updates on T.H. and G.J.A. Additionally, the foster parents were particularly concerned about T.H.'s speech delay so they worked hard to set up speech therapy for T.H.
5. The Grandmother's Testimony
T.H.'s grandmother testified that T.H. had lived with her for most of his life. T.H. had lived with her when his mother, Julie, was in prison. T.H.'s grandmother said that when T.H. was a baby Mark had spent a significant amount of time with T.H. and had provided for him. On Fridays, Mark would bring diapers and baby wipes for T.H. On Saturdays, Mark and his mother would pick up T.H. so they could take him shopping for clothes or to Mark's house. According to T.H.'s grandmother, Mark was good with T.H.
In arguing that the evidence was legally or factually insufficient to support the best interest finding, Mark emphasizes that he was very involved in T.H.'s life until he was six months old. Additionally, Mark faults the Department for not obtaining more information about the programs available to him in prison and for not visiting him while he was in prison and discussing the contents of the service plan with him.
The evidence showed that Mark had committed multiple crimes and had spent much of T.H.'s life in prison. Additionally, even when Mark was not in prison, he had not been T.H.'s primary caregiver and had provided only incidental support for the child in the form of diapers and clothing. Furthermore, Mark's parental rights had already been terminated as to two of his other children. Based on Mark's past conduct, the trial court could have concluded that Mark would not be able to meet T.H.'s physical and emotional needs now and in the future, that Mark presented an emotional and physical danger to T.H. now and in the future, that Mark's parental abilities were lacking, and that Mark's acts and omissions indicated that the parent-child relationship was not a proper one. Mark offered some excuses for his absence from T.H.'s life: Julie had pushed him away and had lied to him about the Department's involvement in T.H.'s life. However, at least some of this testimony was contradicted by Mark's testimony that he was absent from T.H.'s life because he had moved away and had been convicted of another crime and incarcerated.
The trial court also could have considered Mark's lack of stability and compared it with the stability provided by the foster home where T.H. was currently living. Even Mark admitted that, due to his own actions, he was unable to care for, support, and provide housing for T.H. Since T.H. had been placed in this foster home, the child's overall health had improved and he was thriving. Furthermore, the trial court could have considered that T.H.'s foster parents were willing and able to adopt both T.H. and his brother, G.J.A. After considering the evidence under the applicable standards of review, we conclude the evidence was legally and factually sufficient to support the trial court's finding that termination of Mark's parental rights was in T.H.'s best interest. Mark's issue is overruled.
GREG'S APPEAL
Greg raises four issues on appeal. Greg argues (1) the trial court abused its discretion in allowing his original trial counsel to withdraw and in denying his newly-appointed counsel's motion for continuance; (2) the trial court denied him his due process right to effective assistance of counsel; (3) his trial counsel rendered ineffective assistance of counsel; and (4) the evidence was legally or factually insufficient to support the trial court's finding that termination was in G.J.A.'s best interest.
Withdrawal of Trial Counsel and Denial of Motion for Continuance
In his first issue, Greg complains the trial court abused its discretion in allowing his original trial counsel to withdraw and in denying his newly-appointed trial counsel's motion for continuance.
1. Withdrawal of Trial Counsel
On December 22, 2016, the trial court signed an order appointing Joseph Bohac as attorney ad litem for Mark and Greg. On October 27, 2017, the trial court signed an order removing Joseph Bohac as Greg's attorney ad litem and substituting Melissa Vara as Greg's attorney at litem. Greg did not object to the order removing and substituting counsel.
The Department argues that Greg's complaint about the trial court's order removing Mr. Bohac and substituting Ms. Vara was not properly preserved for appellate review because Greg did not object in the trial court. We agree. See TEX. R. APP. P. 33.1(a) (providing that as a prerequisite to presenting a complaint for appellate review the record must show that the complaint was made to the trial court and a ruling was obtained). We, therefore, conclude that Greg's complaint about the order removing and substituting counsel presents nothing for our review.
2. Denial of Motion for Continuance
The trial court called this case for trial on November 7, 2017. Greg's attorney ad litem, Ms. Vara, stated that she was recently appointed to represent Greg, that she had had no contact with him, and that he was not present in court. Ms. Vara announced "not ready" for trial. The Department stated that the deadline to dismiss the case was the following Monday, November 13, 2017. The trial court acknowledged that this case had been affected by scheduling issues and that it was going to have to start the trial because the dismissal deadline was approaching. The trial court denied the "not ready" announcement and proceeded to trial.
Generally, parental termination suits must be concluded approximately one year from the date of a child's removal from the parent. TEX. FAM. CODE ANN. § 263.401 (West Supp. 2017). If a final order is not rendered in that time, the suit is automatically dismissed. Id.
We construe a "not ready" announcement as a motion for continuance. See In the Interest of R.F., III, 423 S.W.3d 486, 489 (Tex. App.—San Antonio 2014, no pet.). A motion for continuance shall not be granted except for sufficient cause supported by affidavit, consent of the parties, or by operation of law. TEX. R. CIV. P. 251. We review the trial court's denial of a motion for continuance for an abuse of discretion. R.F., 423 S.W.3d at 490. Under this standard, we sustain the trial court's determination unless the trial court acted without reference to any guiding rules and principles, such that its ruling was arbitrary or unreasonable. Id. When a motion for continuance is not made in writing and verified, we presume the trial court properly exercised its discretion. In the Interest of E.L.M.M., No. 04-15-00001-CV, 2015 WL 1914770, at *2 (Tex. App.—San Antonio 2015, no pet.).
In this case, the record does not contain a written motion for continuance or an affidavit. Because Greg's motion for continuance did not comply with Rule 251, the trial court did not abuse its discretion in denying the motion. See id.
Greg's first issue is overruled.
Due Process
In his second issue, Greg complains that the trial court denied him his due process right to effective assistance of counsel by allowing Mr. Bohac to withdraw as his attorney ad litem and by substituting Ms. Vara as his attorney ad litem ten days before trial. The primary cases Greg cites to support his argument are In the Interest of C.Y.S., No. 04-11-00308-CV, 2011 WL 5971068, at *1 (Tex. App.—San Antonio 2011, no pet.); and In the Interest of M.J.M.L., 31 S.W.3d 347, 354 (Tex. App.—San Antonio 2000, pet. denied).
In C.Y.S., the appellant argued the trial court abused its discretion under section 107.013(a)(1) of the Texas Family Code and violated her constitutional right to due process by failing to timely appoint an attorney ad litem to represent her in a suit to terminate her parental rights. 2011 WL 5971068, at *3. Under section 107.013(a)(1), the trial court is required to appoint an attorney ad litem to represent a parent's interests in a termination suit brought by the Department if the parent is indigent and responds in opposition to the termination. TEX. FAM. CODE ANN. § 107.013(a)(1) (West Supp. 2017). We concluded that the appellant never raised a due process complaint in the trial court, and therefore, her constitutional complaint was not preserved for our review. 2011 WL 5971068, at *3. We further concluded that the trial court did not abuse its discretion under section 107.013(a)(1) of the Texas Family Code by appointing an attorney ad litem for the appellant ten months after the Department's termination suit was filed and four months before trial. Id., at *4-5.
Similarly, in M.J.M.L., the appellant argued her rights were violated under section 107.013(a)(1) and the due process clause of the federal constitution when the trial court did not appoint an attorney ad litem for her until six months after the Department filed its termination suit. 31 S.W.3d at 354-56. There, the appellant only complained about the six-month delay in the initial appointment of counsel; she did not complain that she was provided ineffective assistance of counsel after the appointment of her first counsel or at trial. Id. at 353-54. We concluded that the appointment of an attorney ad litem six months after the Department filed its termination suit was not a violation of section 107.013(a)(1). Id. at 354. We further concluded, after examining the facts and circumstances of the case, that the trial court's action in delaying the appointment of counsel until six months after the Department filed its termination suit was not a violation of the appellant's due process rights. Id. at 354-56.
Here, Greg argues the trial court deprived him of his constitutional due process right to the effective assistance of counsel by allowing his original trial counsel, Mr. Bohac, to withdraw, and by denying an oral motion for continuance made by his subsequent trial counsel, Ms. Vara. Greg asserts that because Ms. Vara was substituted as trial counsel only ten days before trial, it was impossible for her to adequately review the record, to advocate for him, and to prepare a viable trial strategy. Greg further argues that nothing in the record shows that he had notice of, consented to, or was somehow at fault for Mr. Bohac's withdrawal as attorney ad litem. However, the record shows that Greg did not object to Mr. Bohac's withdrawal and Ms. Vara's substitution as trial counsel on constitutional due process grounds. Thus, Greg's constitutional due process complaint is not preserved for our review. See TEX. R. APP. P. 33.1(a)(1); C.Y.S., 2011 WL 5971068, at *3. Greg's second issue is overruled.
Ineffective Assistance of Counsel
In his third issue, Greg argues that trial counsel rendered ineffective assistance of counsel. In Texas, there is a statutory right to counsel for indigent persons in a parental termination suit filed by a governmental entity. TEX. FAM. CODE ANN. § 107.013(a); In the Interest of M.S., 115 S.W.3d 534, 544 (Tex. 2003). This statutory right to counsel embodies the right to effective assistance of counsel. M.S., 115 S.W.3d at 544. When evaluating a claim of ineffective assistance of counsel in a parental termination suit, we apply the test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Id. at 544-45. Under the first prong of the Strickland test, the appellant must show that counsel's performance was deficient; that is, that counsel made errors so serious that she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. at 544. In evaluating counsel's performance under the first prong of the Strickland test, we look to the totality of the representation and the particular circumstances of the case. In the Interest of J.F., No. 04-14-00316-CV, 2014 WL 5351628, at *1 (Tex. App.—San Antonio 2014, pet. denied). Under the second prong of the Strickland test, the appellant must show that counsel's deficient performance prejudiced his defense; that is, that counsel's errors were so serious as to deny the appellant a fair and reliable trial. In the Interest of J.O.A., 283 S.W.3d 336, 342 (Tex. 2009); M.S., 115 S.W.3d at 545 (citing Strickland, 466 U.S. at 687). To establish an ineffective assistance claim, the appellant must successfully show both prongs of the Strickland test. M.S., 115 S.W.3d at 545.
To resolve this issue, we need not evaluate whether Greg has met his burden to prove the first prong of the Strickland test. Instead, we need only evaluate Strickland's second prong: whether Greg has met his burden to prove that trial counsel's performance prejudiced his defense. The record before us shows that Greg's trial counsel fully participated in the trial of this case and advocated on Greg's behalf. Specifically, the record shows that Greg's trial counsel cross-examined the Department's witnesses, elicited favorable testimony from Greg, lodged objections, and made a cogent closing argument. Additionally, Greg acknowledges in his briefing that "there is nothing in the record" showing "specifically how the trial court's denial of counsel's request for a reset prejudiced [him], i.e.: who the witnesses would have been had [counsel's] request for a continuance been granted" or "what their testimony might have been." We conclude that Greg has failed to meet his burden to prove that counsel's performance prejudiced his defense, that is, that counsel's errors were so serious that they denied him a fair and reliable trial. See In the Interest of J.R., No. 04-14-00788-CV, 2015 WL 2124801, at *3 (Tex. App.—San Antonio 2015, no pet.) (holding the appellant failed to meet his burden under the second prong of Strickland when he failed to argue or prove that but for counsel's deficiencies the outcome would have been different, i.e., that his parental rights would not have been terminated). Greg's third issue is overruled.
Best Interest of the Child
In his fourth issue, Greg argues the evidence was legally or factually insufficient to support the trial court's finding that termination of his parental rights was in G.J.A.'s best interest. The trial evidence relevant to Greg and G.J.A. was as follows.
1. Greg's Testimony
Greg testified that he had been in a relationship with G.J.A.'s mother, Julie, since September 2012. Greg was aware that the Department had tried to make contact with him at the beginning of this case, and that Julie had lied to the Department about living with him. Greg said that the reason it took him so long to come forward and participate in this case was because he had to work. Greg indicated that G.J.A. had lived with him and Julie before the Department opened its case.
Greg admitted that he had an extensive criminal history, including arrests for criminal trespass, driving with an invalid or suspended license, theft, burglary of a vehicle, possession and manufacturing a criminal instrument, possession of marijuana, evading detention, resisting arrest, evading arrest with a vehicle, criminal trespass of a building/vehicle, credit and debit card abuse, and possession of a controlled substance.
Greg acknowledged that he had only submitted to one drug test while this case was pending. This test, taken in April 2017, showed that Greg was positive for cocaine, methadone, and opiates. Greg admitted this was not the only time that he had used illegal substances during this case. Greg testified: "I said I used. I had to function. I had to be awake and sleep." Greg said that he did not submit to the other drug tests requested by the caseworker because the testing interfered with his work schedule. Greg also stated that he did not participate in drug testing because the caseworker had never told him to go to drug testing and the caseworker would only tell him to go to drug testing when he was at work because she knew he could not go then.
Greg asserted that he had completed his service plan. According to Greg, he had completed the required drug treatment and counseling by participating in a methadone program, where he had engaged in drug counseling. Greg explained that he did not participate in many of the visits scheduled with G.J.A. because he had to work. Greg also admitted that he did not provide the caseworker with verification of his employment because he was paid in cash.
Under questioning from his trial counsel, Greg testified that he was employed as a painter and that he was currently staying with his brother. Greg said that when he visited the children, he would bring them toys and food. Greg enjoyed the visits with the children and he thought that the children had fun, too. Greg claimed that, other than a recent driving while license invalid charge, he had not had any criminal charges filed against him since 2013. Greg said that he had never been charged with criminal endangerment to a child, child abuse, or domestic violence. Greg also indicated that he had attended seventeen counseling sessions with a therapist. Greg claimed that he had stopped attending his counseling sessions when the therapist told him that he did not have to go to counseling anymore because he was done. Greg said that he did not think that his rights should be terminated because he had done nothing wrong and using drugs did not make him a bad person. Greg also said that maybe he had done something wrong because he had used drugs. Greg emphasized that even if he had used drugs, he had always worked and taken care of his family financially.
2. The Caseworker's Testimony
A Department caseworker testified that Greg did not complete all of the items on his service plan even though she had reviewed the service plan with him early in the case. Greg had completed a twelve-week parenting class and a drug assessment. Although the drug assessment recommended that Greg receive outpatient drug treatment, Greg did not complete outpatient treatment. Additionally, the service plan required Greg to participate in random drug testing. However, Greg refused a drug test on February 22, 2017, and failed to show for scheduled drug testing on March 21 and March 29, 2017. Greg submitted to a drug test on April 11, 2017. The results showed Greg was positive for cocaine, methadone, and opiates. Greg was participating in some drug treatment at a methadone clinic, but the caseworker could not monitor his progress and see if he was in compliance with his treatment plan because Greg had refused to sign a medical release. The caseworker had sent Greg for six other drug tests between May 2017 and October 2017 and he had no-showed for all of these tests.
Next, the caseworker testified that the service plan required Greg to attend counseling. Greg was unsuccessfully discharged from counseling twice because of lack of consistency in attending counseling sessions. Greg was also required to provide the caseworker with proof that he had housing and employment, but he failed to do so. The caseworker asked Greg to provide her a paystub while the case was pending, but he did not comply. Greg told the caseworker he was living with relatives, but he did not provide her with any details.
According to the caseworker's testimony, Greg was scheduled for a total of seventeen one-hour visits with G.J.A. during the course of this case. Greg failed to appear for eight of these visits. Greg showed up late for five of the visits. On one occasion, Greg was forty-five minutes late.
Finally, the caseworker testified that even though Greg had been given an opportunity to complete his service plan, he did not do so and he "fought" these services "every step of the way." The caseworker acknowledged that Greg did complete parenting classes, but she wished that he had attended more of his visits with G.J.A. so that she could see what Greg had learned from the parenting classes. The caseworker also said that she wished that she had been able to verify that Greg was sober and not on drugs. The sole drug test taken by Greg was positive, and the only reason he submitted to this test was because his brother encouraged him to do so. The caseworker said that because Greg had refused to take any additional drug tests she had no way of knowing if he had made any progress with regard to his drug problem. According to the caseworker, Greg had not demonstrated that he had the ability to provide a safe and stable home for G.J.A., or the ability to maintain his sobriety so he could care for G.J.A. The caseworker also testified that Greg had not demonstrated that he was aware of and able to meet G.J.A.'s needs. The caseworker further testified that Greg had not demonstrated that he had made any positive changes in his life during the pendency of this case. For these reasons, the caseworker believed it would be in G.J.A.'s best interest to terminate Greg's parental rights.
3. The Foster Parent's Testimony
In addition to the previously-detailed testimony about the children's condition and behavior when they came into foster care, the foster parent testified that G.J.A. was behind on his immunizations: he needed eight vaccinations when he came into foster care and she made sure he received them. The foster parent further testified that G.J.A., who was almost two when he came into foster care, would only say: "Wow, wow" or "Mama" to everything, whether it was a chair or a person. The foster parent testified that G.J.A. now had "a whole repertoire of language." Again, the foster parent testified that if the court elected to terminate parental rights, she was willing to adopt G.J.A. and T.H. and was fully committed to doing so.
4. The CASA Volunteer's Testimony
The CASA volunteer testified that Greg's rights should be terminated because he had not been involved with G.J.A., had failed drug tests, had failed to appear in court for hearings, and had failed to attend many of the visits scheduled with G.J.A.
In sum, the evidence showed that Greg failed to complete important components of the service plan and still had a drug abuse problem. The extent of Greg's drug abuse problem was obscured by Greg's lack of cooperation in submitting to drug testing and his failure to provide the caseworker with the information needed to monitor his progress. Additionally, Greg's failure to attend many of the visits with G.J.A., and his late appearance to most of the visits he did attend, further showed that Greg was either unmotivated or unable to parent G.J.A. Greg offered some excuses for his failure to complete some of the items on his service plan, specifically, that the caseworker did not schedule him for drug testing and that she only scheduled him for drug testing when she knew he had to go to work. However, this evidence was not so significant that a factfinder could not have formed a firm belief or conviction that termination of Greg's parental rights was in G.J.A.'s best interest.
Based on Greg's conduct during this case, the trial court could have concluded that Greg would not be able to meet G.J.A.'s physical and emotional needs now and in the future, that Greg presented an emotional and physical danger to G.J.A. now and in the future, that Greg's parental abilities were lacking, and that Greg's acts and omissions indicated that the parent-child relationship was not a proper one. The trial court also could have considered Greg's complete failure to demonstrate to the caseworker that he had a stable home and compared this with the stability provided by G.J.A.'s current living situation. Since his placement in a foster home, G.J.A.'s speech had improved and he was thriving. Furthermore, the trial court could have considered that G.J.A.'s foster parents were fully committed to adopting both G.J.A. and his brother, T.H. After considering the evidence under the applicable standards of review, we conclude the evidence was legally and factually sufficient to support the trial court's finding that termination of Greg's parental rights was in G.J.A.'s best interest. Greg's fourth issue is overruled.
CONCLUSION
The judgment of the trial court is affirmed.
Karen Angelini, Justice