in the Interest of M.S., a Child ( 2015 )

Opinion issued September 29, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00451-CV
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IN THE INTEREST OF M.S., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2014-02671J
MEMORANDUM OPINION
B.L.D., the mother, appeals from the trial court’s decree terminating her
parental rights to her daughter, M.S. She contends that the evidence was neither
legally nor factually sufficient to support the trial court’s findings that: (1) she
failed to comply with the court order setting forth the family service plan
requirements, and (2) termination of her parental rights is in M.S.’s best interest.
We affirm.
Background
In May 2012, when M.S.’s mother was nearly four months pregnant with
M.S., she was charged with theft of property of the value of more than $50 and
under $500, a class B misdemeanor. She pleaded guilty to the charge and was
sentenced to serve 15 days in the Harris County Jail.1
In July 2012, when she was about six months pregnant, M.S.’s mother was
arrested for possession of less than two ounces of marijuana, a Class B
misdemeanor, and held in the county jail. Thirty-five days later, she pleaded guilty
and was sentenced to time served. At trial, the mother denied using marijuana.
The mother gave birth to M.S. in the fall of 2012. When M.S. was
approximately six months old, the mother was charged with the offense of theft of
property valued less than $1,500, third offense, which is classified as a state jail
felony. In August 2013, the mother pleaded guilty to the charge, and received
deferred adjudication and two years’ community supervision.
When M.S. was about 18 months old, she came into the custody of the
Department of Family and Protective Services after being found in the car when
her mother was arrested in Orange County for suspicion of driving while
1
We take judicial notice of the Harris County District Clerk’s records in that case.
See TEX. R. EVID. 201(b)(2).
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intoxicated. The mother failed the field sobriety test and admitted to having taken
3 alprazolam pills before driving. The mother submitted to a blood draw, which
tested negative for alcohol but positive for prescription medications. The mother
explained at trial that she took various medications for anxiety and seizure
disorders. She admitted that her prescription medications made her feel “loopy” or
groggy, but denied being under the influence of the medications while she was
driving. At the time of the termination trial, the DWI charge remained pending in
Orange County.
The court named Child Protective Services (CPS) as the child’s temporary
managing conservator, and CPS initially placed the child with her maternal aunt.
The CPS caseworker reviewed the family service plan with the parents, and both
parents signed the plan. M.S.’s father died while this case was pending in the trial
court.
The family service plan required the mother to complete a drug and alcohol
assessment; submit to random drug screens; refrain from criminal activity; comply
with all stipulations of probation or parole, if any; participate in individual
counseling/therapy sessions concerning issues that led to M.S.’s removal; and
attend and successfully complete an approved parenting class. The plan also
required the mother to obtain and maintain permanent and appropriate housing that
would provide a safe and protective environment for M.S.
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In March 2014, the mother was convicted of driving with a suspended
license, a Class B misdemeanor and a violation of the terms of her community
supervision. She served four days in jail in lieu of paying a fine.
Hair and urine samples were collected from the mother in June 2014. Both
samples tested positive for methamphetamine, marijuana, and alprazolam
metabolites.2 The mother denied having used either cocaine or methamphetamine;
she claimed that she had only used ecstasy. Since then, samples taken from the
mother in August 2014, October 2014, November 2014, January 2015, and March
2015 all tested negative for unprescribed or street drugs.
On October 30, 2014, the trial court approved the child’s placement with her
paternal grandmother. The mother’s counsel stated that she had no objection to
change of placement.
In February 2015, the trial court sent notice that trial would take place
starting April 9 and that the date for dismissal of the cause was April 20, 2015.
Also in February, the mother violated her community service conditions by leaving
Harris County to attend a hearing in her DWI case without obtaining permission
from her probation officer. She spent a month in jail as a result.
2
During the two-year period beginning on November 28, 2013, the mother was also
required to submit to random drug and alcohol testing as a condition of her
community supervision.
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At trial, M.S. was two years old and living with her grandmother. A CPS
caseworker reported that M.S. was doing well in the home. She had bonded with
her grandmother.
The evidence showed that the mother is disabled because of anxiety and
seizure disorders. She receives disability income and food stamps for her support.
The mother admitted that she lacked stable housing during the past year. She
explained that it was difficult to find an apartment because of her criminal
background.
With respect to the mother’ compliance with the family service plan, the
CPS caseworker testified that the mother had completed parenting classes and the
required evaluations. The mother also began substance abuse counseling in
September 2014. The mother received a certificate of completion for drug abuse
counseling, but she had cancelled or missed a number of individual counseling
sessions. The caseworker explained that because of the mother’s delay in
completing the program, she had not yet complied with her drug abuse counselor’s
recommendation that she attend an additional nine monthly aftercare sessions.
The caseworker further testified that the mother did not regularly visit M.S.
The family service plan anticipated that the mother would have supervised
visitation with M.S. every other week. The mother, however, had only eight visits
with M.S. during the year the case was pending. The mother admitted that she
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could not visit during the month she was in jail. The grandmother testified that the
mother cancelled visitation “a lot.” She explained that the mother would arrange
for the grandmother to bring M.S. to meet her mother at a Chuck E. Cheese’s
restaurant, but the mother then failed to appear at the scheduled time. The
grandmother recounted that the last time the mother had visited with M.S., the
mother appeared to be drunk and behaved and was dressed inappropriately. The
mother harassed the Chuck E. Cheese’s staff and became so disruptive that the
restaurant staff asked her to leave. The grandmother testified that she believed it
would be in M.S.’s best interest for M.S. to remain with her.
The trial court signed an order terminating the mother’s parental rights. The
order contains the following findings:
The Court finds by clear and convincing evidence that termination of
the parent-child relationship between [the mother] and the child, M.S.,
the subject of this suit is in the child’s best interest.
Further, the Court finds by clear and convincing evidence that [the
mother] has:
• engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or
emotional well-being of the child, pursuant to § 161.001(E), Texas
Family Code;
• constructively abandoned the child who has been in the permanent
or temporary managing conservatorship of the Department of
Family and Protective Services . . . for not less than six months
and: (1) the Department . . . has made reasonable efforts to return
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the child to the mother; (2) the mother has not regularly visited or
maintained significant contact with the child; and (3) the mother
has demonstrated an inability to provide the child with a safe
environment, pursuant to § 161.001(1)(N), Texas Family Code;
• failed to comply with the provisions of a court order that
specifically established actions necessary for the mother to obtain
the return of the child who has been in the . . . temporary managing
conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child’s
removal from the parent under Chapter 262 for the abuse or
neglect of the child, pursuant to § 161.001(1)(O), Texas Family
Code.
The mother moved for new trial, complaining that she was entitled to
additional time to complete the family service plan. The trial court denied the
motion.
Discussion
The mother challenges the legal and factual sufficiency of the evidence
supporting the trial court’s findings that (1) she failed to comply with the family
service plan and (2) termination of her parental rights is in the best interest of the
child.
A. Standard of Review
A parent’s right to the care, custody, and control of his child is a liberty
interest protected under the Constitution, and we strictly scrutinize termination
proceedings on appeal. Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct.
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1388, 1397 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and
convincing evidence must support an involuntary termination. Holick, 685 S.W.2d
at 20 (citing Santosky, 455 U.S. at 747, 102 S. Ct. at 1391). 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 (West 2014).
When determining legal sufficiency in a parental-rights termination case, we
review “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.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We
assume that the factfinder resolved disputed facts in favor of the judgment if a
reasonable factfinder could have done so. Id. We disregard “evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” Id.
If a court determines that no reasonable factfinder could form a firm belief or
conviction that the matter that must be proven is true after conducting its legal-
sufficiency review, the court must conclude that the evidence is legally
insufficient. Id.
In determining factual sufficiency, we consider the entire record, including
disputed evidence, to determine “whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction” about the truth of the allegation
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sought to be established. Id. (quoting In re C.H., 89 S.W.3d 17, 25 (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, then the evidence is
factually insufficient.” Id.
“The involuntary-termination statute sets out twenty different courses of
parental conduct, any one of which may serve as a ground that satisfies the
statute’s first prerequisite for termination.” In re S.M.R., 434 S.W.3d 576, 580
(Tex. 2014) (citing TEX. FAM. CODE ANN. § 161.001(A)–(T)). To prevail in a
termination case, the Department must establish that one or more of the
enumerated grounds occurred.
II. Sufficiency of Predicate Termination Findings
The mother’s brief challenges only the sufficiency of the evidence to support
termination of her parental rights under section 161.001(1)(O), relating to
compliance with the family service plan. She does not challenge the trial court’s
findings relating to endangerment and abandonment. Because her argument that
the trial court did not give her sufficient time to complete the plan may implicate
the other predicate findings, we address this contention.
The mother contends that “[t]he target date on the [front of the] family
service plan”—April 16, 2015—is the actual deadline for her completion of the
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plan, and that the trial court deprived her of additional time to complete the plan by
proceeding with trial on April 9.
The family service plan document does not support her position. It identifies
April 16, 2015 as the “target date” for the “permanency goal,” and refers the reader
to the last page for definitions. The definition of “permanency goal” concerns
“where the child will live when DFPS services are done.” “Permanency goal” thus
refers not to the parent’s progress in completing the family service plan, but to the
Department’s responsibility to identify a safe, permanent living situation for the
child.
Also working against the mother’s contention, the Family Code allows a
court to terminate a parent’s rights to her child if the child has been in the State’s
custody for at least nine months and the State proves, by clear and convincing
evidence, that the parent failed to comply with a court order that specified what she
had to do to get her child back. TEX. FAM. CODE ANN. § 161.001(1)(O). M.S. had
been in the Department’s care for more than nine months before the trial began.
Under the plain language of the statute, then, the trial court had the authority to try
the case when it did.
We need not review the merits of the mother’s remaining evidentiary-
sufficiency challenge to the trial court’s service plan finding because the mother’s
brief failed to challenge the two other statutory grounds for termination that the
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trial court identified as support for the termination decision. The Department in
this case pleaded three of the statutory grounds, and the trial court found that all
three grounds supported termination of the mother’s parental rights. “Clear and
convincing proof of any one ground will support a judgment terminating parental
rights, if similar proof also exists that termination is in the child’s best interest.” In
re S.M.R., 434 S.W.3d at 580 (citing In re E.C.R., 402 S.W.3d 239, 240 (Tex.
2013)); see TEX. FAM. CODE ANN. § 161.001; In re A.V., 113 S.W.3d 355, 362
(Tex. 2003); Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85,
102 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that court need not
address appellant’s sufficiency challenge to one section 161.001(1) finding in
support of termination, because appellant failed to challenge sufficiency of
evidence supporting findings on three other section 161.001(1) grounds); accord In
re B.M., No. 14-13-00599-CV, 2013 WL 6506659, at *5 (Tex. App.—Houston
[14th Dist.] Dec. 10, 2013, no pet.); In re N.L.D., 412 S.W.3d 810, 818 (Tex.
App.—Texarkana 2013, no pet.); In re C.P.V.Y., 315 S.W.3d 260, 269 (Tex.
App.—Beaumont 2010, no pet.); see also In re K.L.G., No. 14-09-00403-CV, 2009
WL 3295018, at *2 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (observing
that appellate court is bound by unchallenged predicate findings). As two of the
trial court’s findings supporting termination are not challenged on appeal, we hold
that the trial court did not err in concluding that grounds for termination exist.
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III. Sufficiency of Best-Interest Finding
Next, the mother challenges the legal and factual sufficiency of the evidence
supporting the trial court’s finding that termination of her parental rights is in
M.S.’s best interest. Unchallenged predicate findings can support a finding that
termination of a parent’s rights is in the child’s best interest. See In re C.H., 89
S.W.3d at 28 (holding that same evidence may be probative of both section
161.001(1) predicate grounds and best interest); see also In re E.C.R., 402 S.W.3d
at 249 (“Many of the reasons supporting termination under subsection O also
support the trial court’s best interest finding.”). In reviewing the evidence, we also
consider the factors originally set forth in Holley v. Adams, 544 S.W.2d 367 (Tex.
1976), 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. Id. at 371–72.
M.S. is too young to express her own wishes, but the evidence shows that
M.S. is doing well in her grandmother’s home and has bonded with her
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grandmother. The grandmother testified that she desires to adopt M.S. This
evidence shows that the grandmother’s home is a stable place for M.S. where her
emotional and physical needs are being met.
The mother’s behavior during her last visit with M.S. and the grandmother’s
testimony that the mother appeared to be impaired during that visit suggest that the
substance abuse problem that precipitated M.S.’s removal could recur. The
mother’s inability to obtain safe and appropriate housing and her frequent
encounters with law enforcement also support a finding that termination is in
M.S.’s best interest. The record shows that the mother violated the terms of her
community supervision at least twice, which places her at risk of having it revoked
and returning to jail. The mother served a month in jail for one violation shortly
before trial. Her unexcused absences from substance abuse counseling delayed her
completion of the program and caused her counselor to recommend additional
therapy sessions.
The mother has also cancelled numerous appointments with M.S. and her
grandmother, and sometimes she failed to appear for scheduled visits without
cancelling them. She cited transportation problems as the excuse for her lack of
dependability; the trial court, however, could have determined that this reason was
not credible. The mother made fewer than half of the visits with M.S.
contemplated in the family service plan. Given that the mother frequently did not
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appear for a visit with her daughter, the trial court reasonably could have
concluded that the mother was not in a position to care for M.S.
Considering all of this evidence in a neutral light, we hold that the evidence
is such that the trial court could have formed a firm conviction or belief that
termination of the mother’s parental rights was in M.S.’s best interest.
Conclusion
We affirm the trial court’s judgment.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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