Opinion
01-22-00575-CV
01-10-2023
IN THE INTEREST OF Z.S.A., A CHILD
On Appeal from the County Court at Law Waller County, Texas Trial Court Case No. 18-07-25008
Panel consisting of Justices Countiss, Rivas-Molloy, and Radack.
MEMORANDUM OPINION
The Honorable Sherry Radack, Senior Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.
J.A. ("Father") appeals the trial court's order terminating his parental rights to his 12-year-old daughter, Zara. Specifically, Father contends that, because the trial court had previously declined to terminate his parental rights, the Department of Family and Protective Services ("the Department") was required to show a "material and substantial change of circumstances," which he argues that it failed to do. We affirm.
To protect the identity of the minor child, we refer to the parties and some identifiable witnesses by fictitious names, initials, or aliases. Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8(b)(2).
BACKGROUND
In June 2018, Father and Zara's mother ("Mother") took their four children to stay with a family friend, Cathryn Ayers. The family's home had burned down and the family had been moving from hotel to hotel. When the children arrived, they were dirty, had knotted hair and lice, and their underwear was stained with fecal matter. When the parents did not return as promised, Ayers contacted the Department. There were allegations of drug use by the parents and domestic violence by Mother against Father.
We use an alias for this witness because two of the parents' four children remain in her custody.
All four children were initially placed with Ayers, but the oldest son was removed because allegations of sexual abuse had been made against him and the Department was concerned for the safety of the other children. From December 2018 until November 2019, Zara was returned to Father's care. Even though Mother was ordered not to have contact with Zara, she was seen fleeing the home that Zara shared with Father. Because Father allowed Mother to be in the residence in violation of a court order, and because he tested positive for drugs, Zara was again removed from his care. At one point, Father fled with the child to prevent her from being removed from his custody.
In July 2018, the Department filed its Original Petition for Protection of a Child, For Conservatorship, and For Termination in Suit Affecting the Parent-Child Relationship. In the petition, the Department alleged that "[i]f reunification with the father cannot be achieved the Court should terminate the parent-child relationship between [Father] and the child[] [Zara] the subject of this suit under Chapter 161, Texas Family Code, because termination of the parent-child relationship is in the child's best interest and [Father] has committed or more [predicate acts]," including, among other allegations, endangering conduct, endangering conditions, constructive abandonment, and failure to comply with his family service plan for reunification.
In September 2018, a family service plan was created for Father, requiring him to (1) complete a psychological evaluation, (2) maintain appropriate housing and employment, (3) participate in individual counseling, and (4) obtain a drug assessment and submit to random drug screenings.
The case went to trial in February 2020, after which, on May 8, 2020, the trial court entered a Final Order in Suit Affecting the Parent-Child Relationship ("the 2020 Order"). The 2020 Order found that "the appointment of a parent or both parents as managing conservator would not be in the best interest of the child [Zara] because the appointment would significantly impair the child's physical health or emotional development; and it would not be in the best interest of the child to appoint a relative of the child or another person as managing conservator." Instead, the 2020 Order appointed the Department as permanent managing conservator and granted Father possessory conservatorship. The 2020 Order also provided that "the court may modify this order that provides for the support of the children" if "the circumstances of the children or a person affected by the order have materially and substantially changed[.]" Finally, the 2020 order provided that "the children the subject of this suit will continue in care, and this Court will continue to review the placement, progress and welfare of the children." All other relief requested by the Department, including the termination of Father's parental rights, was denied.
In December 2020, the Department created another family service plan for Father that contained essentially the same requirements as the 2018 Family Service Plan, with an additional requirement to participate in a family-violence program. Father completed none of these requirements.
In April 2021, the Department filed a Petition for Modification & Termination in Suit Affecting the Parent-Child Relationship. In this petition, the Department alleged that it had made "reasonable efforts to make it possible for the child to return home," and it sought termination of Father's parental rights on the same grounds asserted in the earlier trial.
The case went to a trial before the bench in February 2022, after which the trial court, on July 26, 2022, entered an order terminating Father's parental rights to Zara and appointing the Department as Zara's permanent managing conservator.
This appeal followed.
PROPRIETY OF TERMINATION
Termination of parental rights "can be achieved after a prior order denying termination of the parent-child relationship through either section 161.004 or section 161.001." In re H.L.H., No. 10-16-00254-CV, 2018 WL 1321750, at *13 (Tex. App.-Waco Mar. 14, 2018, no pet.) (mem. op.). Using section 161.004 is "the only way that the trial court can terminate a parent's parental rights to a child based on evidence presented in a prior termination proceeding regarding the parent-child relationship." Id. Thus, when the Department seeks termination after a prior order denying termination, a trial court may terminate parental rights (1) under section 161.001, which requires clear and convincing evidence of acts or omissions having occurred since the prior denial of termination, or (2) under section 161.004, which requires clear and convincing evidence of an act or omission under section 161.001 that occurred prior to the denial and evidence of a material and substantial change since the prior denial of termination. In re N.A.V., No. 04-19-00646-CV, 2020 WL 1250830, at *3 (Tex. App.-San Antonio Mar. 17, 2020, pet. denied) (mem. op.).
Family Code Section 161.004Section 161.004 of the Texas Family Code allows the termination of parental rights after denial of a prior petition to terminate and provides:
(a) The court may terminate the parent-child relationship after rendition of an order that previously denied termination of the parent-child relationship if:
(1) the petition under this section is filed after the date the order denying termination was rendered;
(2) the circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered;
(3) the parent committed an act listed under Section 161.001 before the date the order denying termination was rendered; and
(4) termination is in the best interest of the child.
(b) At a hearing under this section, the court may consider evidence presented at a previous hearing in a suit for termination of the parent-child relationship of the parent with respect to the same child.Tex. Fam. Code § 161.004.
Material and Substantial Change of Circumstances
On appeal, Father challenges only section 161.004(a)(2), arguing that the evidence is legally and factually insufficient to support the trial court's implied finding pursuant to section 161.004 of a substantial and material change since the date the order denying termination was rendered. Here, the trial court rendered judgment denying the Department's previous petition to terminate on May 8, 2020. According to Father, the Department failed to offer clear and convincing evidence at trial of a material and substantial change in the circumstances of one of the parties to this lawsuit since that date.
Standard of Review
Under section 161.004(a)(2), whether circumstances have "materially and substantially changed" since the date of the previous order is a question of fact. In re H.M.O.L., No. 01-17-00775-CV, 2018 WL 1659981, at *11 (Tex. App.-Houston [1st Dist.] Apr. 6, 2018, pet. denied) (mem. op.). In reviewing the legal sufficiency of the evidence to support the trial court's finding, we look "at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (citation omitted). In reviewing the factual sufficiency of the evidence, we consider disputed or conflicting evidence. Id. at 345. "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. (citation omitted). Under these standards, the factfinder is the sole judge of the weight and credibility of the evidence. Id. at 346.
Applicable Law
"[T]here are no definite guidelines as to what constitutes a 'material and substantial change in circumstances' to terminate parental rights under section 161.004." In re F.M.E.A.F., 572 S.W.3d 716, 725 (Tex. App.-Houston [14th Dist.] 2019, pet. denied) (quoting In re A.L.H., 515 S.W.3d 60, 89 (Tex. App.-Houston [14th Dist.] 2017, pet. denied)). For example, one court has determined that a material and substantial change existed under section 161.004 (1) when the parent was adjudicated guilty of a crime and sentenced to prison after the prior order, see In re C.A.C., No. 14-12-00396-CV, 2012 WL 4465234, at *9 (Tex. App.-Houston [14th Dist.] Sept. 27, 2012, no pet.) (mem. op.); (2) when a parent failed to complete a family service plan by failing to visit the child and attend medical appointments, see In re M.J.W., No. 14-16-00276-CV, 2016 WL 4206046, at *8 (Tex. App.-Houston [14th Dist.] Aug. 9, 2016, pet. denied) (mem. op.); and (3) when a parent failed to comply with the family service plan and was incarcerated for state jail felonies, In re F.M.E.A.F., 572 S.W.3d at 726. Another court of appeals has held that there was evidence of a material and substantial change in the parents' circumstances when they failed to maintain contact with the Department. See In re J.R., No. 07-12-00003-CV, 2012 WL 1605738, at *5 (Tex. App.-Amarillo May 8, 2012, no pet.) (mem. op.). The court noted that since the denial of the petition to terminate, the parents' lives had "remained the same: unstable." Id. "However, their continued instability has manifested itself in new ways, ways that have now impacted their relationships with their children and the Department such that their own circumstances have materially and substantially changed." Id. The court noted that the parents "had refused to maintain regular contact with the Department and, in the last conversation about two weeks prior to the hearing, had refused to disclose to the Department their current address." Id. The court held that the parents' "continued instability and recent disinclination to cooperate at all with the Department" supported the trial court's finding of material and substantial change. Id.
In In re K.C.F., the court of appeals found a "material and substantial change," noting that
[M]other's life remains unstable. In the five years since the trial court first ordered her to complete services, Mother has resisted complying or has refused to comply, completing only one requirement after the Department filed its motion to modify. The trial court questioned the parties in some detail about Mother's in-person and virtual visits with the children, and heard evidence that Mother's participation was inconsistent. Mother did not offer any evidence of a plan for reunification with her children. The children have now been in foster care for half of their lives, and the Department offered evidence that all family placement options for the children had been exhausted. See In re J.R., 2012 WL 1605738, at *5 (citing testimony that children should not "languish in foster care throughout childhood").
No. 05-22-00509-CV, 2022 WL 6353084, *5 (Tex. App.-Dallas Oct. 10, 2022, no pet.).
Analysis
Similarly here, Father's life remains unstable, see id., and he has shown a "disinclination to cooperate" with the Department. See In re J.H., 2012 WL 1605738, at *5. It is problematic that Father still lives with Mother, whose parental rights have also been terminated for endangerment, among other reasons, but who is not appealing the termination of her parental rights.
Since 2018, when the trial court first ordered him to complete services, Father has refused to comply, even after being given more time to do so after the trial court did not terminate his rights in 2020. When asked about it at trial, the following exchange took place:
Q: Did [the Department] offer you like a list of-or tell you a list of things that we would like-you know, we'd like you to take this class and do this counseling and so on and so forth? Did they do that?
A: They did.
Q: Did you do any of the counseling? Did you do any of the counseling?
A: Counseling?
Q: Un-huh.
A: No, I did not.
Q: Did you do anything on the list?
A: No, nothing on that list was geared towards reunification of my family.
Father further testified that he objected to the family service plan because, "for every service offered, there was no benefit to reunification of the family . . . [b]ut for every service that was not attended, [he] was-it was marked as a refusal for assistance by the family." "For everything that was offered on the surface it appeared to be beneficial, but the reality was that it was not." The trial court could have concluded that Father's disdain for the Department's requirements for reunification is evidence that he is "disinclined to cooperate" with the Department's reunification efforts.
Additionally, there was evidence that Father's refusal to participate in services was causing further emotional harm to his daughter. Cathryn Ayers, who has since been named permanent managing conservator of two of Zara's siblings, testified that Zara has questioned her about why her parents will not do their "homework." Ayers testified that, "[Zara] knows they have a checklist and she knows they need to check the boxes off. And then she can go back. And she doubts her self-worth because of it. Is she worth it? She must be a horrible child. It's terrible to know the inner dialogue of her when she talks to me." Ayers further testified about the effect Father's failure to complete his services is having on Zara:
The record shows that Ayers, a family friend, was 19-years-old when the parents dropped all four children off with her, promising to return for them in a few days. When the parents did not return, Ayers contacted the Department. She has since been named permanent managing conservator of two of the four children.
Q: We talked about her parents doing their homework, right? And you understand that's all of the things that they need to do on their-their list, their service plan, right?
A: Yes, ma'am.
Q: And in fact her [sic] and I talk a lot about her homework and that's probably where she got the term from, right?
A: Right.
Q: And she instructs you they won't do their homework, correct?
A: Not they won't do it, like why won't they do it? Why-why haven't I-why aren't I home? If all homework needs to be done, why aren't I home?
Q: And the time that she decided that she wanted to ask for their rights to be terminated was when she realized they weren't doing their homework?
A. Absolutely, yes.
Q: And she's aware of that?
A: Yes, ma'am.
Q: And that is the reason why she changed her mind; is that correct?
A: I think a lot of things went into it, but that was probably the main reason.
Additionally, Father attended only two of eight scheduled visits with Zara in the year before the Department sought once again to terminate his parental rights. And, there was evidence that, even when Father did visit, his visits were upsetting to Zara because he promised her that she would be coming home soon despite the fact that he was not complying with his family service plan. The trial court could have concluded that Father's failure to maintain contact with Zara was evidence of changed circumstances. See In re M.J.W., 2016 WL 4206046, at *8 (considering parent's failure to attend visits with child as evidence of changed circumstances).
Zara became so upset with her parents that, in August 2021, she decided that she no longer wished to visit with them and decided that she would rather be adopted than to be returned to their custody. Father has not sought any further visits with Zara since August 2021. There was testimony at trial that Zara "craves permanency" and that she has "come to realize she doesn't want to wait for her parents anymore, she wants to be adopted." Accordingly, the Department has changed its plan for the child to adoption rather than reunification. While Zara's current foster family is not considering adoption, the termination of Father's parental rights would allow Zara to be placed with a family seeking an adoption, which she now desires.
In addition to failing to complete the services required of him, Father has missed 44 of the 49 drug tests required of him. And, at trial, he admitted to using marijuana less than a month before trial.
Viewing the evidence in the light most favorable to the trial court's finding, we conclude that the trial court could have formed a firm belief or conviction that a material and substantial change in circumstances had occurred since the trial court rendered the 2020 Order. See In re J.F.C., 96 S.W.3d at 266. Likewise, giving due consideration to evidence that the factfinder could reasonably have found to be clear and convincing, and considering disputed evidence, the trial court could have formed a firm belief or conviction that a material and substantial change in circumstances had occurred since the trial court rendered the 2020 Order. See id. at 267.
We overrule Father's sole issue.
CONCLUSION
We affirm the trial court's order terminating Father's parental rights to Zara.