in the Interest of G.M., a Child ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00128-CV
IN THE INTEREST OF G.M.,
A CHILD
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-104707-17
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
This is an ultra-accelerated appeal2 in which S.G. (Mother) appeals the
termination of her parental rights to her son, Garrett,3 following a bench trial. In a
1
See Tex. R. App. P. 47.4.
2
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
3
See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to
minors in an appeal from a judgment terminating parental rights). All children are
referred to using aliases.
single issue, Mother argues that the evidence is factually insufficient to support
the trial court’s best-interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2)
(West Supp. 2017). We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Mother’s drug addiction over the years culminated in the removal of her
two children. Although Mother took steps to improve her life during the final three
months that this case was pending in the trial court—including obtaining safe
housing with her mother, obtaining employment, and ending her relationship with
Father—her recent positive changes did not overcome the fact that she had
continued to use drugs throughout the pendency of the case. Because Mother
challenges the sufficiency of the evidence to support the trial court’s best-interest
finding, we set forth a summary of the evidence.
A. Removal of Older Son Kurt
In August 2015, the Department of Family and Protective Services (the
Department) received an allegation of neglectful supervision by Mother of six-
year-old Kurt. The report indicated that Mother suffered from a heroin addiction
and that she had used heroin around Kurt. Mother once passed out on the porch
of her apartment for more than an hour. While Mother was unconscious, Kurt
was left unsupervised in the apartment. The report further indicated that Mother
often allowed Kurt to stay up unsupervised for more than twenty-four hours at a
time. The report noted that Kurt was unable to speak properly and did not attend
school.
2
Mother tested positive for opiates. She admitted to leaving drugs and drug
paraphernalia within Kurt’s reach and agreed that Kurt was unsupervised
whenever she passed out from her heroin use. The Department removed Kurt
from Mother’s care and placed him in foster care, pending the completion of a
home study on maternal Great-Grandparents’ home. Great-Grandparents were
appointed managing conservators of Kurt in a suit affecting the parent-child
relationship in May 2016.
B. Removal of Garrett
Mother gave birth to Garrett in February 2017. Although Garrett’s
meconium tested positive for amphetamine, both Garrett and Mother tested
negative. The following month, in March 2017, Mother tested positive for
methamphetamine. The Department placed Garrett with Great-Grandmother and
allowed supervised contact between Mother and Garrett as part of a parent-child
safety plan.
Four days later, the Department received a referral alleging neglectful
supervision and physical abuse of Garrett by Mother. Mother’s sister had found
methamphetamine in Mother’s belongings, and Great-Grandmother had told
Mother that she must leave Great-Grandmother’s home immediately. A physical
altercation ensued; Mother pushed her sister, bit her mother, and attempted to
“rip” Garrett out of Great-Grandmother’s arms. Great-Grandmother secured
Garrett and Kurt in a bedroom and called the police. The police arrested Mother
on outstanding warrants. Mother was charged with assault causing bodily injury
3
to a family member. The Department subsequently filed suit for temporary
managing conservatorship of Garrett.
C. Domestic Violence Concerns
Mother’s criminal history includes two counts of assault bodily injury to a
family member in June 2016—for which Mother was placed on community
supervision for twenty-four months. Mother admitted to conservatorship worker
Amber Jefferson that she had fought with Father and that they had hit each
other.4
D. Mother’s Service Plan and Compliance
Jefferson developed a service plan for Mother. It required Mother to
complete a drug and alcohol assessment and to follow any recommendations
from the assessment, including attending treatment; to refrain from criminal
activity; to submit to random drug testing; to attend individual counseling; to
attend the parenting class FOCUS for Mothers; to attend domestic violence
classes; to obtain and maintain safe and stable housing; to obtain and maintain
stable and legal employment; and to address her anger management issues with
a professional and follow all recommendations. Jefferson testified that Mother
completed the drug and alcohol assessment and inpatient drug treatment and
submitted to drug testing. After Mother had completed her inpatient drug
4
At the time of the termination trial, Father was in jail on three pending
charges related to assaults on Mother in October and November 2017, and he
had prior CPS history for domestic violence involving Mother. Because Father is
not involved in this appeal, we omit further details related to the termination of his
parental rights to Garrett.
4
treatment, her follow-up care required her to attend Narcotics Anonymous
meetings and Alcoholics Anonymous meetings. But Mother refused to attend
them. Mother also refused to participate in domestic violence classes.5
Mother moved from the DFW area to Austin in November or December
2017 after a fight with Father; he had punched Mother in the face. Jefferson
arranged a CPS courtesy worker for Mother so that she could continue to work
her service plan in Austin. Nonetheless, Mother did not complete the required
services.
While this case was pending, Mother had the opportunity to visit Garrett
one hour each week. But she attended only approximately two visits per month.
Mother’s visits evoked concern by the Department that Mother and Garrett were
not bonded. Garrett appeared uncomfortable around Mother; she appeared
unfamiliar to him. Mother last visited Garrett on December 27, 2017.
Two weeks prior to trial, Jefferson contacted the Austin courtesy worker.
The courtesy worker forwarded a text message conversation between himself
and Mother. When the courtesy worker had texted Mother that she needed to
start a parenting class, Mother had responded, “[W]ell, they’re terminating my
rights so what is the point?”
5
The record reflects that Mother and Father had continued to engage in
domestic violence while the case was pending as reflected by scratches on their
arms and blood on their clothing when they showed up to visits. Additionally,
Mother was arrested for assaulting Father in late September 2017, but the
charges were dropped.
5
Jefferson testified that at the time of the termination trial, Mother and
Father were no longer in a relationship, but Jefferson did not know when that
relationship had ended. Mother was living with her mother in Austin; the courtesy
worker had no concerns about the home. Mother was employed at Applebee’s in
Austin.
E. Garrett’s Status and Planned Adoption
The permanency reports and the child’s service plan review submitted to
the trial court describes Garrett as “a happy and healthy baby” who “enjoys being
cuddled” and appears to be bonded with Great-Grandmother.
Jefferson testified that Garrett’s prognosis after birth was precarious;
doctors anticipated that Garrett would have disabilities and would not be able to
progress developmentally at a normal rate due to his in vitro exposure to illegal
drugs. The child’s service plan review noted that Garrett’s motor skills were not
developing on track and that his right arm lacked muscle strength. A neurologist
opined that Garrett might have mild cerebral palsy but that a diagnosis could not
be made until he was older. Despite those setbacks, Jefferson testified that
Garrett had far exceeded the doctors’ expectations and was thriving in Great-
Grandparents’ home. Great-Grandparents had coordinated with Early Childhood
Intervention to provide Garrett with occupational and physical therapy designed
to develop his motor skills.
Jefferson said that Great-Grandparents met Garrett’s physical, emotional,
developmental, educational, and financial needs and provided him with a safe
6
and loving home. Jefferson opined that Great-Grandparents would be able to
meet Garrett’s needs in the future. Thus, the Department’s plan was for Great-
Grandparents to adopt Garrett.
F. The Department’s Concerns and Recommendations from the
Department and Garrett’s Ad Litem
Jefferson expressed concerns about Mother’s continued drug use
throughout the pendency of the case. Mother admitted using drugs in October
2017, and she tested positive for cocaine and methamphetamine in February
2018.6 Jefferson also expressed concern about Mother’s neglect of Garrett, her
inability to provide Garrett with a stable home, and her failure to address the
Department’s concerns about her pattern of domestic violence.
The Department requested termination of Mother’s parental rights to
Garrett based on multiple grounds under family code section 161.001(b)(1),
including endangering environment and endangering conduct. Jefferson testified
that it was in Garrett’s best interest for Mother’s parental rights to be terminated.
Garrett’s attorney ad litem also opined that it was in Garrett’s best interest for the
trial court to terminate Mother’s parental rights.
6
Mother argues in her brief that the year was not provided through
testimony. Because Jefferson testified that Mother had “recently tested positive
for cocaine and methamphetamines in February,” because the case was not
opened until March 2017, and because the termination trial occurred on March
16, 2018, a rational factfinder could conclude that the recent test occurred in
February 2018.
7
G. Outcome
After hearing the above testimony and reviewing the evidence admitted at
trial, the trial court found by clear and convincing evidence that Mother had
violated subsections (D), (E), (N), (O), and (R) of section 161.001(b)(1) and that
termination of her parental rights was in Garrett’s best interest. Mother
perfected this appeal from the trial court’s termination order.
III. FACTUALLY SUFFICIENT EVIDENCE SUPPORTS THE BEST-INTEREST FINDING
In her sole issue, Mother argues that the evidence is factually insufficient
to support the trial court’s best-interest finding.
A. Burden of Proof and Standard of Review
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West Supp. 2017); Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to
sever permanently the relationship between a parent and a child, it must first
observe fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex.
2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–
92 (1982)). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d
796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.
8
Termination decisions must be supported by clear and convincing
evidence. See Tex. Fam. Code Ann. §§ 161.001(b), 161.206(a); E.N.C., 384
S.W.3d at 802. Due process demands this heightened standard because “[a]
parental rights termination proceeding encumbers a value ‘far more precious
than any property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S.
at 758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see
also E.N.C., 384 S.W.3d at 802. Evidence is clear and convincing if it “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); E.N.C., 384 S.W.3d at 802.
For a trial court to terminate a parent-child relationship, the Department
must establish by clear and convincing evidence that the parent’s actions satisfy
one ground listed in family code section 161.001(b)(1) and that termination is in
the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384
S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must
be established; 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); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—
Fort Worth 2012, no pet.).
We are required to perform “an exacting review of the entire record” in
determining whether the evidence is factually sufficient to support the termination
of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In
9
reviewing the evidence for factual sufficiency, we give due deference to the
factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated one of the provisions of section 161.001(b)(1) and that
termination of the parent-child relationship would be in the best interest of the
child. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17,
28 (Tex. 2002). 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 in the truth of its finding, then the evidence is factually insufficient.
H.R.M., 209 S.W.3d at 108.
B. Best-Interest Factors
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We review
the entire record to determine the child’s best interest. In re E.C.R., 402 S.W.3d
239, 250 (Tex. 2013). The same evidence may be probative of both the
subsection (1) ground and best interest. Id. at 249; C.H., 89 S.W.3d at 28.
Nonexclusive factors that the trier of fact in a termination case may also use in
determining the best interest of the child include the following: the desires of the
child; the emotional and physical needs of the child now and in the future; the
emotional and physical danger to the child now and in the future; the parental
10
abilities of the individuals seeking custody; the programs available to assist these
individuals to promote the best interest of the child; the plans for the child by
these individuals or by the agency seeking custody; the stability of the home or
proposed placement; the acts or omissions of the parent which may indicate that
the existing parent-child relationship is not a proper one; and any excuse for the
acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest
finding, “we consider, among other evidence, the Holley factors”); E.N.C., 384
S.W.3d at 807. These factors are not exhaustive, and some listed factors may
be inapplicable to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed
evidence of just one factor may be sufficient in a particular case to support a
finding that termination is in the best interest of the child. Id. On the other hand,
the presence of scant evidence relevant to each factor will not support such a
finding. Id.
C. Holley Factors Weigh in Favor of Termination
With regard to the desires of the child, Garrett was thirteen months old at
the time of the termination trial and therefore did not testify. The record,
however, demonstrates that Garrett was bonded to Great-Grandmother; that he
was well-cared for by Great-Grandparents; and that he was unfamiliar with
Mother, who attended only about half of the visits she was allowed each month
and had not visited Garrett during the three months prior to trial. The trial court
was entitled to find that this factor weighed in favor of terminating Mother’s
11
parental rights to Garrett. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—
Houston [14th Dist.] 2014, no pet.) (stating that when a child is too young to
express his desires, the factfinder may consider whether the child has bonded
with his current caregiver, is well-cared for, and whether the child has spent
minimal time with the parent).
As for the emotional and physical needs of Garrett now and in the future,
his basic needs include food, shelter, and clothing; routine medical and dental
care; a safe, stimulating, and nurturing home environment; and friendships and
recreational activities appropriate to his age. Although Mother obtained safe and
appropriate housing by moving to Austin during the last three months that the
case was pending, she did not demonstrate her ability to consistently provide a
safe home for Garrett or to consistently provide for his emotional needs; she
stopped visiting Garrett. The trial court was entitled to find that this factor
weighed in favor of terminating Mother’s parental rights to Garrett.
With regard to the emotional and physical danger to Garrett now and in the
future, the record reflects that Mother’s history of drug use poses a significant
risk of harm to Garrett. Mother used drugs during her pregnancy with Garrett
and demonstrated an inability to supervise Garrett while under the influence of
drugs. Mother’s history of domestic violence with Father poses another risk of
emotional and physical danger to Garrett. The trial court was entitled to find that
this factor weighed in favor of terminating Mother’s parental rights to Garrett.
12
With regard to Mother’s parenting abilities, the record demonstrates
Mother’s history of prioritizing her drug use over parenting her children and that
she struggles to manager her anger. The trial court was entitled to find that this
factor weighed in favor of terminating Mother’s parental rights to Garrett.
The record shows that Mother did not complete her CPS services.7 The
trial court was entitled to find that this factor weighed in favor of terminating
Mother’s parental rights to Garrett.
With regard to plans for Garrett and the stability of the proposed
placement, the record reflects that Mother wanted Garrett to be returned to her
care and wanted to provide him with a drug-free, safe, and stable home free from
physical abuse and neglect. But Mother had failed to remain drug-free and had
only obtained safe housing immediately before trial. Great-Grandparents, who
were already caring for Mother’s older son, had shown the ability to provide a
safe, stable home for Garrett and planned to adopt him. The trial court was
7
Mother argues that we should not look at whether she completed her
services but rather should focus on whether she completed the majority of her
service plan goals. Even focusing on Mother’s service plan goals, which is not
the standard we apply, the first two service plan goals (of a total of four goals)
required Mother to demonstrate an ability to protect Garrett from any physical,
emotional, and mental abuse and neglect and to demonstrate an ability to
provide Garrett with a safe and drug-free environment. Because Mother had
failed to refrain from drug use during the case, Mother had not completed these
goals.
13
entitled to find that this factor weighed in favor of terminating Mother’s parental
rights to Garrett.8
With regard to Mother’s acts or omissions that may indicate that the
existing parent-child relationship is not a proper one, the analysis set forth
above—which details Mother’s struggle with drug use that continued even
through the month before the termination trial, Mother’s housing instability,
Mother’s willingness to expose Garrett to domestic violence, as well as Mother’s
failure to take advantage of the services that she was offered—reveals that the
existing parent-child relationship between Mother and Garrett is not a proper
parent-child relationship. The trial court was entitled to find that this factor
weighed in favor of terminating Mother’s parental rights to Garrett.
As for any excuse for Mother’s acts or omissions, Mother acknowledged
her drug use to Jefferson at different points while the case was pending and
acknowledged that she had endangered Garrett by using drugs during her
pregnancy. The trial court was entitled to find that this factor weighed in favor of
terminating Mother’s parental rights to Garrett.
8
To the extent that Mother argues that “[t]here was no legal justification” for
terminating Mother’s parental rights to Garrett because Mother’s parental rights
to Kurt were not terminated before appointing Great-Grandparents as his
managing conservators, the trial court must consider the best interest of each
child individually. See In re J.O.A., 283 S.W.3d 336, 340 (Tex. 2009) (affirming
order that terminated mother’s parental rights to her two youngest children and
appointed mother’s mother as managing conservator of mother’s oldest child
without terminating her parental rights to oldest child). See generally Tex. Fam.
Code Ann. § 161.001(b)(2).
14
Reviewing all the evidence with appropriate deference to the factfinder, we
hold that the trial court could have reasonably formed a firm conviction or belief
that termination of the parent-child relationship between Mother and Garrett was
in his best interest, and we therefore hold that the evidence is factually sufficient
to support the trial court’s best-interest finding. See Tex. Fam. Code Ann.
§ 161.001(b)(2); Jordan v. Dossey, 325 S.W.3d 700, 733 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied) (holding evidence factually sufficient to support the
trial court’s best-interest finding when most of the best-interest factors weighed in
favor of termination); In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth
2006, no pet.) (“A parent’s drug use, inability to provide a stable home, and
failure to comply with [a] family service plan support a finding that termination is
in the best interest of the child.”). We overrule Mother’s sole issue.
IV. CONCLUSION
Having overruled Mother’s sole issue, we affirm the trial court’s judgment
terminating her parental rights to Garrett.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, PITTMAN, and BIRDWELL, JJ.
DELIVERED: July 19, 2018
15