in the Interest of A.G. and F.G., Children ( 2015 )

Opinion issued December 3, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00571-CV
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IN THE INTEREST OF A.G. AND F.G., CHILDREN
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2013-06904J
MEMORANDUM OPINION
The trial court terminated the parental rights of S.F., the mother, to her two
children, A.G. and F.G. 1 In two issues, S.F. argues that the evidence was legally
and factually insufficient to support the termination of her parental rights under
1
The trial court also terminated the parental rights of the children’s fathers.
However, only the mother appealed the trial court’s judgment, so neither father is
a party to this appeal.
Texas Family Code section 161.001(1)(D) and under Family Code section
161.001(2).
We affirm.
Background
S.F. is the mother of A.G. and F.G., who were born on August 15, 2001, and
December 26, 2011, respectively. The Texas Department of Family and Protective
Services (“DFPS”) became involved in the children’s lives on November 15, 2013,
when a neighbor reported that F.G.—who was not quite two years old at the
time—had been wandering unsupervised in the apartment complex courtyard for
two hours. Police arrived to investigate, and the neighbor reported that F.G. was
often left unsupervised. The police determined that S.F. had left F.G. under the
supervision of A.G., who was twelve years old at the time, and had gone across the
street to a bar. S.F. was eventually charged with and convicted of child
endangerment for inadequately supervising F.G.
During its investigation of S.F., DFPS talked with A.G. and S.F. A.G.
informed investigators that no one watched her when S.F. was not home, but S.F.
would have someone check on her and S.F. or would leave a phone for A.G. She
also stated that S.F. sometimes smoked marijuana. S.F. told the DFPS investigator
that the neighbor reported her to DFPS because she was jealous and wanted her
children. S.F.’s apartment manager informed DFPS that she had received
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numerous complaints from tenants at the complex who reported seeing F.G.
wandering the complex unsupervised. The apartment manager also informed DFPS
that S.F. was behind on her rent and would soon be evicted.
As a result of its investigation, DFPS placed S.F. on a Safety Plan and
instituted a Parental Child Safety Placement, providing that the children could
reside with their godmother, T.E., and that S.F. would have supervised visitation.
On December 1, 2013, S.F. sought treatment at Bayshore Medical Center and was
diagnosed with depression. A doctor from the hospital contacted DFPS to inform it
of S.F.’s diagnosis and to inform it that S.F. had tested positive for marijuana use
and was being discharged to the Bay Area Homeless Shelter. S.F. acknowledged
the marijuana use, admitted that she had been diagnosed with bipolar disorder but
was not taking the necessary medication, and asked that the children be moved
from the godmother’s home into foster care. The godmother, T.E., likewise asked
DFPS to move the children because her relationship with S.F. had become
difficult—S.F. “kept calling her and cussing her out.” The children were removed
to a foster home temporarily, but they eventually returned to T.E.’s home.
On December 18, 2013, DFPS filed its original petition in this case seeking
emergency custody of A.G. and F.G. and ultimately seeking termination of S.F.’s
parental rights. DFPS placed S.F. on a family service plan, which the trial court
found to be reasonable and ordered S.F. to complete in March 2014. The family
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service plan required, among other things, that S.F. complete psychosocial,
psychiatric, and substance abuse evaluations and follow any recommendations;
that she take parenting classes, participate in individual counseling, and obtain a
sponsor to address her substance abuse; and that she refrain from engaging in
illegal activities, maintain employment and housing, and undergo drug testing.
However, S.F. failed to complete these requirements.
At trial, DFPS presented evidence, in the form of an affidavit and a written
evaluation of S.F. conducted by the Children’s Crisis Care Center, detailing the
circumstances of S.F.’s conviction for child endangerment of F.G. and the
children’s coming into DFPS care as set out above. DFPS supervisor Tina Marsh,
who had been involved in the children’s case from the beginning, testified that S.F.
had been convicted of child endangerment with regard to F.G. and that the
endangerment conviction was the reason the children came into DFPS’s care.
Marsh stated that S.F. had been receiving services from DFPS for more than a
year, and during that time, she had done nothing to alleviate the concerns raised by
her inadequate supervision of F.G. Marsh testified that, based on their discussions
regarding her conviction, S.F. did not see a problem with going across the street to
drink at a bar and leaving F.G. under A.G.’s supervision.
Marsh testified that she could not imagine any progress that S.F. could make
in the immediate future that would convince DFPS that it was safe for the children
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to return to her care. Marsh testified that DFPS had provided S.F. with a family
service plan and had offered S.F. services for over a year, but she had not
completed her service plan. Marsh stated that S.F. had completed the psychosocial
evaluation and substance abuse assessment required by her family service plan, but
she had not followed any of the recommendations resulting from those evaluations,
including completing a “full-blown” psychological evaluation, taking parenting
classes, and participating in individual counseling and substance abuse treatment.
S.F. had likewise failed to maintain stable employment and housing, as she was
unemployed at the time of trial and did not have a known address. S.F. had not
provided any support to the children. S.F. also had failed to submit to random drug
testing in the six months prior to trial, but she had tested positive for marijuana use
on more than one occasion prior to that time.
Marsh testified that she spoke to S.F. the day before trial, and S.F. told her
that she was starting inpatient treatment at Santa Maria Hospital. S.F. told Marsh
that she had been trying to get a spot at the treatment facility for over a year, but
Marsh believed, based on her experience, that if S.F. had been “persistent and . . .
ready for treatment” she would have been able to get in treatment more quickly
using the list of providers given to her by DFPS. Marsh stated that S.F. had been
diagnosed with bipolar disorder and possibly schizophrenia and had refused to
follow the recommended treatment.
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Marsh testified that, at the time of trial, both children were placed with their
godmother, T.E. Marsh believed that T.E. was meeting the children’s physical and
emotional needs and that neither A.G. nor F.G. has any special needs. Marsh stated
that DFPS’s goal for the children’s placement was adoption and that T.E. was
willing to adopt both children but was “still legally married” and needed to resolve
that issue first. Marsh also acknowledged that A.G., who was thirteen years old at
the time of trial, was bonded with her mother, did not want the court to terminate
S.F.’s parental rights, and did not want to be adopted. A.G.’s attorney ad litem
reiterated A.G.’s desire that the court not terminate S.F.’s parental rights.
T.E., the children’s godmother and caregiver at the time of trial, testified that
the girls had been living with her for approximately six months. She stated that
S.F. would visit “periodically,” or once every few weeks, and that she would “stay
like five minutes or so and then leave.” T.E. testified that S.F. provided her with
food stamps on two occasions to help with the food bill but had not otherwise
provided any support for the children. S.F. told T.E. that she was “trying to get
help” but did not specify what help she was seeking, and T.E. noticed during her
visits that S.F. did not appear healthy. Rather, she described S.F. as “down” and
“real tired looking.” T.E. also believed that S.F. had come for visits while under
the influence of drugs, and she based her belief on her observations that S.F.’s
speech was slurred and her eyes were glassy and red.
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T.E. testified that the children were both doing well under her care. She
testified that A.G. needed summer school to improve her reading and that she
would make sure A.G. got the help she needed in that area. T.E. had been caring
for the girls without receiving financial assistance from the government or DFPS,
and she was willing to continue caring for the girls because she loves them and
believes it is the right thing to do. T.E. stated that her boyfriend, who lived with
her and the children, was present with her at trial and that she and her husband had
been separated for more than twenty years. T.E. and her boyfriend were both
employed and contributed to the children’s care.
The trial court found clear and convincing evidence that S.F. violated Family
Code subsections 161.001(1)(D), (E), (L), and (O) and that termination of her
parental rights to both children was in the children’s best interest. Accordingly, the
trial court rendered its final judgment terminating S.F.’s parental rights to A.G. and
F.G. and naming DFPS as the permanent managing conservator. This appeal
followed.
Sufficiency of the Evidence
S.F. challenges the sufficiency of the evidence supporting the trial court’s
determinations that termination was proper under Family Code subsection
161.001(1)(D) and that termination of her parental rights was in the children’s best
interest.
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A. Standard of Review
In a case to terminate parental rights brought by DFPS under section
161.001, DFPS must establish, by clear and convincing evidence, (1) that the
parent committed one or more of the enumerated acts or omissions justifying
termination and (2) that termination is in the best interest of the child. TEX. FAM.
CODE ANN. § 161.001 (Vernon 2014); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).
“Clear and convincing evidence” is “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
(Vernon 2014); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
In conducting a legal-sufficiency review in a parental-rights-termination
case brought by DFPS under section 161.001, we must look at the entire record to
determine whether the evidence, viewed in the light most favorable to the finding,
is such that a reasonable factfinder could have formed a firm belief or conviction
about the truth of the matter on which DFPS bore the burden of proof. See In re
J.O.A., 283 S.W.3d at 344–45 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002)). We “must assume that the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so,” and we “should disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
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incredible.” Id. at 344; Jordan v. Dossey, 325 S.W.3d 700, 712–13 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied).
In conducting a factual-sufficiency review, we view all of the evidence,
including disputed or conflicting evidence. See In re J.O.A., 283 S.W.3d at 345.
We should consider whether the disputed evidence is such that a reasonable
factfinder could not have resolved that disputed evidence in favor of its finding. In
re J.F.C., 96 S.W.3d at 266. The evidence is factually insufficient only 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” regarding the finding under
review. In re J.O.A., 283 S.W.3d at 345 (quoting In re J.F.C., 96 S.W.3d at 266).
DFPS must establish both elements—that the parent committed one of the
acts or omissions enumerated in section 161.001(1) and that termination is in the
best interest of the child. See TEX. FAM. CODE ANN. § 161.001; In re C.H., 89
S.W.3d at 23. Termination may not be based solely on the best interest of the child
as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). However, “[o]nly one predicate finding under section
161.001(1) is necessary to support a judgment of termination when there is also a
finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355,
362 (Tex. 2003).
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B. Findings Pursuant to Section 161.001(1)
In her first issue, S.F. argues that the evidence was legally and factually
insufficient to establish that she endangered the children pursuant to subsection
161.001(1)(D). See TEX. FAM. CODE ANN. § 161.001(1)(D) (providing that court
may terminate parent-child relationship if parent has “knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which
endanger the physical health or emotional well-being of the child”).
S.F. does not challenge the sufficiency of the evidence supporting the trial
court’s findings under subsections 161.001(1)(E), (L), or (O). See id.
§ 161.001(1)(E) (providing that court may terminate parent-child relationship if
parent has “engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical health or emotional well-being
of the child”); id. § 161.001(1)(L)(x) (permitting termination of parental rights
when parent had been found guilty of child endangerment); id. § 161.001(1)(O)
(permitting termination of parental rights when parent has failed to comply with
provisions of court order that specifically established actions necessary for parent
to obtain return of child). “Only one predicate finding under section 161.001(1) is
necessary to support a judgment of termination when there is also a finding that
termination is in the child’s best interest.” See In re A.V., 113 S.W.3d at 362.
Because S.F. does not challenge the sufficiency of the evidence supporting the trial
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court’s findings pursuant to subsections 161.001(1)(E), (L), or (O), and the trial
court also found that termination was in the children’s best interest, as discussed
below, we need not address the sufficiency of the evidence to support its findings
pursuant to subsection 161.001(1)(D). See id.
We overrule S.F.’s first issue.
C. Findings on Children’s Best Interest
In her second issue, S.F. argues that the evidence was insufficient to support
the trial court’s conclusion that termination of her parental rights was in the
children’s best interest.
There is a strong presumption that the best interest of the child will be
served by preserving the parent-child relationship. See In re R.R., 209 S.W.3d 112,
116 (Tex. 2006) (per curiam). Prompt and permanent placement of the child in a
safe environment is also presumed to be in the child’s best interest. TEX. FAM.
CODE ANN. § 263.307(a) (Vernon 2014). The Family Code and the Texas Supreme
Court have both set out numerous factors to be considered in determining a child’s
best interest, including, among others: the child’s age and physical and mental
vulnerabilities; the child’s desires; the magnitude, frequency, and circumstances of
harm to the child, including current and future danger to the child; whether there is
a history of substance abuse by the child’s family; the willingness and ability of the
child’s family to seek out, accept, and complete counseling services and to
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cooperate with and facilitate an appropriate agency’s close supervision; whether
the child’s family demonstrates adequate parenting skills, including providing the
child and other children under the family’s care with minimally adequate health
and nutritional care, guidance and supervision, and a safe physical home
environment; the stability of the home or proposed placement; and the parent’s acts
or omissions indicating an improper parent-child relationship and any excuses for
the acts or omissions. See id. § 263.307(b); In re R.R., 209 S.W.3d at 116; Holley
v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
This is not an exhaustive list, and a court need not have evidence on every
element listed in order to make a valid finding as to the child’s best interest. In re
C.H., 89 S.W.3d at 27. The evidence supporting the statutory grounds for
termination may also be used to support a finding that the best interest of the child
warrants termination of the parent-child relationship. Id. at 28; In re N.R.T., 338
S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). Furthermore, the best
interest analysis may consider circumstantial evidence, subjective factors, and the
totality of the evidence as well as the direct evidence. See In re N.R.T., 338 S.W.3d
at 677.
Here, multiple factors support the trial court’s finding that termination was
in the children’s best interest. A.G. was thirteen and F.G. was three at the time of
trial, and they were living with their godmother, who was providing for their
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emotional and physical needs. F.G.’s age and both children’s physical and mental
vulnerabilities weigh in favor of terminating S.F.’s parental rights. See TEX. FAM.
CODE ANN. § 263.307(b); In re R.R., 209 S.W.3d at 116.
S.F. had been convicted of child endangerment for leaving F.G.
unsupervised, and she frequently left both A.G. and F.G. unsupervised. A.G.
testified that no one watched her when her mother was gone and acknowledged
that her mother left her to supervise F.G. and sometimes used marijuana. S.F.
tested positive for drug use on more than one occasion after the children were
removed from her care, and she did not comply with DFPS’s requests for random
drug tests in the six months prior to trial. In re T.N., 180 S.W.3d 376, 383 (Tex.
App.—Amarillo 2005, no pet.) (“A parent’s engaging in illegal drug activity after
agreeing not to do so in a service plan for reunification with her children is
sufficient to establish clear and convincing proof of voluntary, deliberate, and
conscious conduct that endangered the well-being of her children.”).
S.F. failed to complete her family service plan, including the requirements
that she complete substance abuse treatment, parenting classes, and individual
counseling. She likewise failed to obtain stable housing or employment. S.F. told
Marsh that she did not think there was any problem with leaving the children
unsupervised so that she could visit a bar. After the children were removed, she
visited the children only sporadically and failed to provide support for them
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beyond giving T.E. food stamps on two occasions. Thus, the record contains
evidence regarding circumstances that resulted in harm to the children and a lack
of physical safety for the children. It also revealed the extent of S.F.’s history of
mental health issues and drug abuse, her unwillingness to complete the necessary
treatment or other court-ordered services, and her lack of parenting skills. See TEX.
FAM. CODE ANN. § 263.307(b) (providing that, in determining best interest of
child, courts should consider circumstances of harm, history of substance abuse,
willingness to complete services, demonstration of parenting skills, and any excuse
for prior acts or omissions); In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013)
(holding that findings under section 161.001(l)(O) that parent failed to complete
court-ordered services can support best interest finding); Holley, 544 S.W.2d at
371–72 (providing that, in determining best interest of child, courts should
examine stability of home and proposed placement and parent’s acts or omissions
indicating improper relationship).
Regarding the children’s placement at the time of trial, Marsh testified that
T.E. had been caring for the children for the six months prior to trial and was
meeting the children’s needs. Marsh further testified that T.E. wanted to adopt
them. Marsh stated that permanent placement in a stable adoptive home was in
both children’s best interest. T.E. testified that she had been providing for the girls
without financial help from DFPS or the government and that she wanted to
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continue to do so because she loved the girls and thought caring for them was the
right thing to do. T.E. and her boyfriend were both employed and participated in
the girls’ care. Thus, the stability of the proposed placement also weighs in favor
of terminating S.F.’s parental rights. See TEX. FAM. CODE ANN. § 263.307(b)
(providing courts should consider stability of proposed placement in determining
children’s best interest).
We conclude that the evidence was legally sufficient to support the trial
court’s finding that termination of S.F.’s parental rights to A.G. and F.G. was in
the children’s best interest. See In re J.O.A., 283 S.W.3d at 344.
S.F. argues that the evidence was insufficient to support the trial court’s
best-interest finding because A.G., who was thirteen at the time of trial, was
bonded to her and did not want S.F’s parental rights to be terminated. The record
contains no evidence regarding A.G.’s level of maturity or her reasoning for
wanting S.F. to retain her parental rights. See In re D.W., 445 S.W.3d 913, 926
(Tex. App.—Dallas 2014, pet. denied) (holding that child’s preference should not
be considered absent showing of sufficient maturity). And evidence that A.G. loves
her mother and wants to maintain a relationship with her does not outweigh the
evidence of S.F.’s endangering conduct and unsuitability as a parent. See id.
(holding that child’s love for parent and enjoyment of visits is “only marginally
relevant” to best-interest determination); see also W.D. v. Tex. Dep’t of Family &
15
Protective Servs., No. 03-14-00581-CV, 2015 WL 513267, at *6 (Tex. App.—
Austin Feb. 5, 2015, no pet.) (mem. op.) (stating that even when children’s desires
arguably weigh in favor of allowing parent to retain her parental rights, factfinder
may still reasonably conclude termination was in children’s best interest when
record demonstrated that parent could not provide for children’s safety, would not
take advantage of programs designed to help her, lacked appropriate parenting
skills, and had no excuse for her prior acts and omissions).
S.F. also argues that T.E.’s home was not a suitable placement for the
children because of her relationships with “multiple” men. However, the record
does not support S.F.’s assertion that T.E. is an unsuitable caregiver. The record
demonstrates only that T.E. had been separated from her husband for more than
twenty years and that, at the time of the termination hearing, she was living with
her boyfriend, who participated in the care and support of the children.
Furthermore, even if the court later determines that the children’s current
placement is unsuitable, this does not outweigh the testimony and other evidence
indicating that placement in a stable, permanent home is in the children’s best
interest and that S.F. cannot supply such a home. See In re C.H., 89 S.W.3d at 28
(holding that relevant inquiry is whether factfinder could reasonably form firm
belief or conviction that termination of parental rights was in child’s best interest
“even if the agency is unable to identify with precision the child’s future home
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environment,” because court did not want best-interest determinations reversed on
sole ground that adoptive family had not yet been located); In re J.H., No. 09-15-
00171-CV, 2015 WL 5093400, at *6–7 (Tex. App.—Beaumont July 27, 2015, no
pet.) (mem. op.) (upholding trial court’s best-interest finding even where child was
“struggling” with current placement when evidence was otherwise sufficient to
demonstrate that mother could not meet child’s needs).
Viewing all of the evidence, as we must, we conclude that any disputed
evidence was not so significant that a factfinder could not reasonably have formed
a firm belief or conviction that termination of S.F.’s parental rights was in the
children’s best interest. See In re J.O.A., 283 S.W.3d at 345. Thus, we conclude
that the evidence was both legally and factually sufficient to support the trial
court’s finding that termination was in the children’s best interest. See id. at 344–
45.
We overrule S.F.’s second issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Jennings, Keyes, and Bland.
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