in the Interest of M.R., J. and M.R., Children ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00440-CV
IN THE INTEREST OF M.R., J. AND M.R., CHILDREN
On Appeal from the 320th District Court
Potter County, Texas
Trial Court No. 74,754-D, Honorable Don R. Emerson, Presiding
June 9, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant S.B. appeals the termination of her parental rights to her children,
M.R., J. and M.R.1 She presents three issues. We will affirm.
1
S.B.’s parental rights to another of her children, D.J.B., were also terminated in this proceeding.
The appeal of that termination will be addressed in a separate opinion. The fathers of M.R.,J. and M.R.
voluntarily relinquished their parental rights. Neither father has appealed the termination of his parental
rights.
Factual and Procedural Background
M.R.,J., a boy almost seven years old at the time of the October 2013 final
hearing, and M.R., a girl five years old at the final hearing, were removed in 2009 from
appellant’s custody by the Texas Department of Family and Protective Services
because of allegations of appellant’s drug use and neglect of her children. Except for a
short period,2 the children have been in foster care since. Appellant agreed to give
permanent managing conservatorship of the children to the Department in January
2011. In May 2013, the Department filed a petition to terminate the parent-child
relationship between appellant and her children. Following a bench trial, the court
terminated appellant’s rights to both children. This appeal followed.
Analysis
Through three issues, appellant challenges the sufficiency of the evidence to
support the grounds on which her parental rights were terminated and the sufficiency of
the evidence supporting the trial court’s finding that termination of her parental rights
was in the best interests of her children.
Standards of Review
The natural right existing between parents and their children is of constitutional
dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,
455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). A decree terminating this
natural right is complete, final, irrevocable, and divests for all time that natural right as
2
At one point, the children were placed in a “fictive kinship placement.” The children were
removed from that placement and returned to foster care following allegations of abuse and neglect by
that caregiver.
2
well as all legal rights, privileges, duties, and powers between the parent and child
except for the child's right to inherit. Holick, 685 S.W.2d at 20. That being so, we are
required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846
(Tex. 1980). However, parental rights are not absolute, and the emotional and physical
interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89
S.W.3d 17, 26 (Tex. 2002).
The Texas Family Code permits a court to terminate the parent-child relationship
if the petitioner establishes (1) one or more of the statutorily-enumerated acts or
omissions and (2) that termination of the parent-child relationship is in the best interest
of the child. TEX. FAM. CODE ANN. § 161.001. Though evidence may be relevant to both
elements, each element must be proved, and proof of one does not relieve the burden
of proving the other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground
and best interest of the child must be proved, only one statutory ground is required to
terminate parental rights under section 161.001. In re A.V., 113 S.W.3d 355, 362 (Tex.
2003). Therefore, we will affirm the trial court's order of termination if legally and
factually sufficient evidence supports any one of the grounds found in the termination
order, provided the record shows also that it was in the best interest of the child for the
parent's rights to be terminated. See id.
Due process requires the application of the clear and convincing standard of
proof in cases involving involuntary termination of parental rights. In re J.F.C., 96
S.W.3d 256, 263 (Tex. 2002); see TEX. FAM. CODE ANN. § 161.206(a) (West 2008).
"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
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sought to be established." TEX. FAM. CODE ANN. § 101.007 (West 2008). This standard,
which focuses on whether a reasonable jury could form a firm belief or conviction,
retains the deference a reviewing court must have for the factfinder's role. In re C.H., 89
S.W.3d at 26. We must maintain appropriate deference to the jury's role as factfinder
by assuming that it resolved conflicts in the evidence in favor of its finding when
reasonable to do so and by disregarding evidence that it reasonably could have
disbelieved. See In re J.F.C., 96 S.W.3d at 266.
In reviewing the legal sufficiency of the evidence supporting an order terminating
parental rights, 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 as to the truth of the allegations sought to be established. Id. "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. In other
words, we will disregard all evidence that a reasonable factfinder could have disbelieved
or found to have been incredible. Id.
When reviewing the factual sufficiency of the evidence supporting a termination
order, we determine "whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction about the truth of the [Department]'s allegations." In re
C.H., 89 S.W.3d at 25. In conducting this review, we consider whether the disputed
evidence is such that a reasonable factfinder could not have resolved the disputed
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. "If, in light of the entire
4
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.
Predicate Ground
Section 161.001(1)(N)3
The Texas Family Code permits termination on clear and convincing evidence
that termination was in the child's best interest and that the parent committed the
following act or omission:
(N) constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the Department of Family and
Protective Services or an authorized agency for not less than six months,
and: (i) the department or authorized agency has made reasonable efforts
to return the child to the parent; (ii) the parent has not regularly visited or
maintained significant contact with the child; and (iii) the parent has
demonstrated an inability to provide the child with a safe environment.
TEX. FAM. CODE ANN. § 161.001(1)(N). See In the Interest of D.N., 405 S.W.3d
863 (Tex. App.—Amarillo 2013, no pet.) (applying subsection (N)).
Discussion
A parent constructively abandons a child when (1) the child has been in the
permanent or temporary managing conservatorship of the State or an authorized
agency for not less than six months, (2) the State or the authorized agency has made
3
The trial court also found termination appropriate under section 161.001(1)(F) of the Family
Code. Because we find the evidence in the record supports termination under section 161.001(1)(N), we
do not address the sufficiency of the evidence to support termination under section 161.001(1)(F). See In
re A.V., 113 S.W.3d at 362 (only one statutory ground is required to terminate parental rights under
section 161.001).
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reasonable efforts to return the child to the parent, (3) the parent has not regularly
visited or maintained significant contact with the child, and (4) the parent has
demonstrated an inability to provide the child with a safe environment. TEX. FAM. CODE
ANN. § 161.001(1)(N); In re M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.—Fort Worth
2009, no pet.) (op. on reh'g); In re A.S., 261 S.W.3d 76, 88-89 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied). We examine the evidence supporting each element.
Children in Permanent or Temporary Managing Conservatorship
It is undisputed that the Department has been the children’s permanent
managing conservator since January 2011.
Reasonable Efforts to Return Children to Parent
Returning a child to a parent, under subsection 161.001(1)(N)(i), does not
necessarily mean that the child must be physically delivered to the individual. In re
D.S.A., 113 S.W.3d 567, 573 (Tex. App.—Amarillo 2003, no pet.). "Reasonable efforts"
to reunite parent and child can be satisfied through the preparation and administration
of service plans. Id. at 570-72; In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth
2002, no pet.).
Service plans were put into place in 2009 and each stated that the permanency
goal was “family reunification,” with a concurrent or alternative permanency goal of
“relative adoption.” In her trial testimony, appellant acknowledged she did not initially
“work the services” called for under the plans for the return of her children to her care.
Appellant was incarcerated in a state jail from December 2009 through a date in
6
December 2010. The next month, she agreed to an order appointing the Department as
permanent managing conservator of the children.4 She testified she did so because
she knew she could not complete the required services by the court date, “so I decided
to give the Department [permanent conservatorship] so that I could have enough time to
get out and work on my services and start getting my kids back.”
Appellant satisfied some requirements of the plan during December 2010. She
completed the required psychological evaluation, completed a drug and alcohol
assessment, and some individual counseling. But she did not follow through with the
recommendations, including those to maintain contact with the Department, continue
counseling, attend meetings with Narcotics Anonymous and provide proof thereof to the
Department, or acquire stable housing. Instead, she testified, she postponed working
on the plan because she was preoccupied with the service plan for her new baby, born
to her in the state jail.5 And she began using drugs again later in 2011. So, appellant
testified, she did not complete any services during that year. The caseworker noted
appellant also “stopped returning phone calls” and failed to provide the Department with
a current phone number after the January 2012 placement hearing.
The evidence of the degree to which appellant completed the actions required
under the service plans was conflicting. In any event, however, appellant’s own
testimony demonstrates her understanding that the route to the return of her children
was through compliance with the service plans. Her testimony, and that of the
4
See TEX. FAM. CODE ANN. § 263.404 (permitting final orders appointing the department
managing conservator without termination of parental rights).
5
Appellant testified her parental rights to that child also were terminated. She agreed with her
counsel’s assessment of that termination: “And that’s because you didn’t work services and you didn’t
show up; is that right?”
7
caseworker describing elements of the plans, supports the trial court’s implicit finding
that the handling of the plans constituted a reasonable effort on the part of the
Department to return the children to appellant.
Appellant argues in her brief that the Department “did not give [her] any other
services to work” to aid her reunification with the children after the 2011 order granting
the Department permanent managing conservatorship. But she does not cite us to
authority suggesting that the Department was required to do so in order to demonstrate
its reasonable efforts to return the children to her.6 The caseworker testified that each
time appellant contacted the Department about visitation with her children under the
terms of the 2011 order, the Department did its best to accommodate her requests.
The record also contains testimony referring to home studies the Department
conducted in efforts to place one of the children with relatives of his father. The trial
court could have seen these efforts also as supporting this element of subsection N.
See In re N.R.T., 338 S.W.3d 667, 673-74 (Tex. App.—Amarillo 2011, no pet.)
(discussing evidence of attempts to place children with relatives as satisfying
“reasonable efforts” requirement).
Lack of Regular Visits or Significant Contact with Children
The children did not live with appellant at any time between their June 2009
removal and the October 2013 final hearing. Except for the short period noted above,
the children have resided in foster homes in or near Amarillo since their removal. After
6
And she argues the Department violated the January 2011 order by denying her visits with her
children for reasons not provided by that order. We will address that contention later in this opinion.
8
her release from state jail, appellant moved to Fort Worth where her mother and sisters
lived. At the time of the final hearing, she was living with her father near St. Louis,
Missouri, where she had lived since late 2012.
During the 33 months between the January 2011 order and the final hearing, the
children saw their mother five times, in January 2011, July 2011, January 2012, and
September 2013, and the day before the final hearing in October 2013. She requested
a visit for July 2012 but did not attend it because she was hospitalized. She next
requested a visit in January 2013 but was not allowed to attend because she failed a
drug test given before the visit.7 Appellant requested another visit with her children in
July 2013 but did not attend the visit because she had not yet passed a drug screen
test. The case worker noted that “[e]very visit except for yesterday’s visit has been the
same day as a placement review hearing.” Sporadic visits like these have been found
sufficient to support a finding of lack of significant contact under section 161.001(1)(N).
See, e.g., In re N.R.T., 338 S.W.3d 667, 673-74 (Tex. App.—Amarillo 2011, no pet.); In
re H.R., 87 S.W.3d 691, 699 (Tex. App.—San Antonio 2002, no pet.). See also In re
J.J.O., 131 S.W.3d 618, 628-29 (Tex. App.—Fort Worth 2004, no pet.) (holding
evidence sufficient to support finding that mother had not regularly visited or maintained
significant contact with child when mother made only twelve visits during a nine-month
period); In re P.R., 994 S.W.2d 411, 416 (Tex. App.—Fort Worth 1999, pet. dism’d
w.o.j.) (finding evidence sufficient under 161.001(1)(N) where mother sporadically
visited child, used drugs, and failed to comply with service plan).
7
Appellant attributed the positive hair follicle test in January 2013 to her last marijuana and
methamphetamine use in November.
9
Appellant argues she visited her children “as often as she could.” Even if true,
the argument would not defeat the ground for termination. The Department was
required to prove that appellant had not regularly visited or maintained significant
contact with her children, not that she lacked desire to visit them.
Appellant also argues the January 2011 order contained no requirement that she
have clean drug tests before visiting with the children, so the Department violated the
order by preventing her January 2013 and July 2013 visits. The argument ignores the
provision of the court’s July 2012 placement review order that ordered appellant not be
permitted to visit the children until she had a negative drug screen. And, in any event,
two or three additional visits during the almost three years between the January 2011
order and the termination hearing would not elevate her visits to the level of regular, or
her contacts with her children to the level of significant.
The court also heard the caseworker testify that other than a birthday card,
appellant had not sent anything to either child since she assumed responsibility for the
case in August 2012.
Parent Demonstrated Inability to Provide Children with Safe Environment
The evidence supporting a conclusion appellant demonstrated an inability to
provide her children with a safe environment begins with that showing the neglect and
drug use that led to their initial removal. The supporting evidence continues with the
evidence showing that appellant, alone or in conjunction with their fathers or any other
family member, has not provided for her children at any time since their removal. She
had to rely on the Department to provide for her children while she was in the state jail,
10
and her drug use prevented her from providing for them after her release. The case
worker testified appellant never completed the services set forth in the service plans
and has not “demonstrated over time that she can remain free from drug abuse and
provide a safe and stable home environment for these children.”
Appellant’s testimony that after her 2012 move to Missouri, she has abstained
from drugs, obtained a job, moved into a substantial home with her father and
stepmother, begun the process of regaining her driver’s license, made a plan to return
to school, surrounded herself with supportive people, and assumed informal custody of
her daughter, E.R,8 while commendable, do not negate the clear evidence that for a
period of years beginning in 2009 she demonstrated an inability to provide her children
with a safe environment.
Conclusion
Viewing the evidence in the light most favorable to the Department as the
prevailing party, a rational trier of fact could have reasonably formed a firm belief or
conviction appellant constructively abandoned her children. Likewise, viewing the
evidence as a whole in a neutral light, a rational trier of fact reasonably could have
reached the same firm belief or conviction. The evidence is legally and factually
sufficient to support the trial court's findings under section 161.001(1)(N). We resolve
appellant’s first two issues against her.
8
Appellant had previously given permanent managing conservatorship of E.R. to the child’s
paternal grandmother.
11
Best Interests
The trial court is given wide latitude in determining the best interest of a minor
child; Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982), and, while there is a
strong presumption that keeping a child with a parent is in the child's best interest, it is
also presumed that prompt and permanent placement of the child in a safe environment
is in the child's best interest. In re D.S., 333 S.W.3d 379, 383 (Tex. App.—Amarillo
2011, no pet.).
In conducting the best interest analysis, we evaluate "[t]he best interest of the
child, not the parent." Id. at 384. We consider, among other evidence, the Holley factors
which include: (1) the child's desires; (2) the child's present and future emotional and
physical needs; (3) any present or future emotional and physical danger to the child; (4)
the parental abilities of the individuals seeking custody; (5) the programs available to
assist the individuals seeking custody to promote the child's best interest; (6) the plans
for the child by the individuals or agency seeking custody; (7) the stability of the home
or proposed placement; (8) the parent's acts or omissions which may indicate that the
existing parent-child relationship is improper; and (9) any excuse for the parent's acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1970). These considerations
are not exhaustive nor is proof of each a condition precedent to termination of the
parent-child relationship. In re D.S., 333 S.W.3d at 383-84 (citing In re C.H., 89 S.W.3d
at 27). Other factors not on the list may be considered when appropriate and 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. In re C.H., 89 S.W.3d at 27.
12
The evidence supporting the statutory grounds for termination may be used to
support a finding that the best interest of the children warrants termination of the parent-
child relationship; id. at 28; In re P.E.W., 105 S.W.3d 771, 779 (Tex. App.—Amarillo
2003, no pet.), and a best interest analysis may also consider circumstantial evidence,
subjective factors, and the totality of circumstances as well as the direct evidence. In re
D.S., 333 S.W.3d at 384. In addition, a parent's future conduct may be measured by his
or her past conduct in determining whether it is in the child's best interest to terminate
parental rights. Id.
The trial court could have seen the evidence as showing appellant has no
significant parental relationship with either M.R. or M.R.,J. The record conclusively
established the children’s contacts with their mother since 2010 have been minimal.
The evidence of the children’s desires was mixed. There was testimony that after
a visit with appellant, five-year-old M.R. was excited that she had seen her mother, that
appellant had given M.R. some rings and “that she would probably be moving.” But
before the visit M.R. told her counselor she didn’t remember her mother but did
remember her sister, E.R. A counselor also testified M.R. has reactive attachment
disorder but is beginning to attach to her foster family and appeared to be happy.
A counselor testified M.R.,J. is normally a “very active, very lively, very happy
child, hyperactive” and is “very bonded” to his foster family. She testified that when she
saw M.R.,J. after a visit with appellant, “his hyperactivity and impulsiveness was
moderate to severe, regression heightened. He would not stay in the therapy -- or the
playroom, ran in and out, stated that he was not going to go anywhere, said he was not
13
going to leave, refused to talk about the visit.” He had “a lot more difficulty.” He has
repeatedly told his counselor he does not want to move from his foster family.
Although the Department’s caseworker testified that its plan for the children is
adoption outside the family, it has not identified a prospective adoptive placement for
either child. The foster parents have not expressed interest in adopting the children.
The caseworker testified the Department could not begin to seek adoptive placements
for the children until termination of parental rights was achieved. As noted, appellant’s
parental rights to D.J.B, a boy ten years old, also were terminated at the same final
hearing. The Department’s plan is to locate an adoptive placement for all three children
together. That, according to the caseworker, is “possible.”
Appellant testified at the hearing to her sobriety for more than a year, her
continued employment, and to her home with her father. The paternal grandmother of
her daughter E.R., who is that child’s permanent managing conservator, testified she
was allowing E.R. to reside with appellant in Missouri. There was testimony they will
seek a court order approving that arrangement. The paternal grandmother testified
favorably about E.R.’s experience living with appellant in Missouri, but testified she has
not been to Missouri to observe the home herself.
There was testimony that E.R. has been diagnosed with the same medical
conditions, hyperactivity and reactive attachment disorder, as those suffered by M.R., J.
and M.R. Appellant testified she deals with those conditions in E.R. and can do the
same with the other two children.
14
The caseworker also told the court appellant’s last visit with her children went
well and agreed appellant had passed two drug tests during 2013. The caseworker
acknowledged appellant’s report of sobriety for nearly a year and the completion of
some counseling, an assessment, a psychological examination, and a parenting class
while in prison. She also agreed appellant had been employed since February 2013.
Given the length of time these children have been in foster care, and the
attachment disorders that have resulted from their lengthy period of uncertainty, the trial
court well could have seen a need for permanency to be the children’s primary need.
The court also could have seen it to be important that the children stay together if
possible. E.R. was separated from the other children by the January 2011 agreed
order, when the paternal grandmother was made her permanent managing conservator
and the Department was dismissed from her case. Appellant is 26 years old, and
makes $1400 a month in her work at a nursing home. The parental rights of both
children’s fathers have been terminated. The permanence of appellant’s residence with
her father and stepmother was not directly addressed by the evidence. The court well
could have had doubt that appellant soon would be able to assume responsibility for
two, or three, additional children, despite her assurances. In sum, the evidence
permitted the trial court to conclude that termination of appellant’s parental rights and
pursuit of the Department’s plans for them give the children the best chance for
permanency, and we will not second-guess the trial court’s conclusion. The trial court
was the judge of the credibility of the witnesses and determined the weight to be given
their testimony. In re J.J.O., 131 S.W.3d 632.
15
In light of all the evidence viewed in accordance with the required standards, the
trial court could have reasonably formed a firm belief or conviction that termination of
appellant's rights was in M.R.,J. and M.R.’s best interests. The evidence contrary to
that conclusion is not so significant as to preclude such a firm belief or conviction.
Accordingly, we find the evidence legally and factually sufficient to support the trial
court's finding and overrule appellant's issue.
Conclusion
Having resolved each of appellant’s issues against her, we affirm the judgment of
the trial court.
James T. Campbell
Justice
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