in the Interest of L.T.B. and L.M.A., Children ( 2016 )

Affirmed and Memorandum Opinion filed November 3, 2016.
In The
Fourteenth Court of Appeals
NO. 14-16-00384-CV
IN THE INTEREST OF L.T.B. AND L.M.A., CHILDREN
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2015-02943J
MEMORANDUM OPINION
The trial court terminated the parental rights of S.S.A. (“Mother”) with
respect to two of her children, Lizzie and Leigh,1 and appointed appellee Texas
Department of Family and Protective Services (“the Department”) to be the
children’s managing conservator. The court also terminated the rights of the fathers
of the children; the fathers do not appeal. Mother challenges the sufficiency of the
evidence to support the judgment. We affirm.
1
We use fictitious names for the children discussed in this opinion. See Tex. R. App. P.
9.8(b)(2). Mother’s third child lives with the child’s father, and Mother’s rights regarding that
child are not at issue in this case.
BACKGROUND
The Department received a report in early April 2015 of neglectful
supervision and physical abuse of Lizzie, then age ten, and Leigh, then age eight.
The referral alleged Mother was inappropriately disciplining the girls, including
hitting them on the face, chest, and back. Department caseworker Sharise
Washington visited the children and found they both appeared clean and healthy.
Neither girl disclosed abuse or neglect. Washington asked Mother to submit to a
drug test. Mother agreed and went to a testing facility the next day, but she arrived
with a sample of someone else’s urine to be tested instead of hers. She had a hair
follicle test a week later and was positive for cocaine and marijuana.
Mother had been referred to the Department for allegations of abuse and
neglect three times before the 2015 referral. She had twice participated in the
Department’s Family Based Safety Services (“FBSS”) program. FBSS would not
accept her into the program with respect to the April 2015 referral due to her
Department history. Therefore, the children went to stay with their maternal
grandmother and step-grandfather as part of a Parental Child Safety Agreement
between Mother and the Department. The agreement required Mother to live
separately from the grandparents and allowed only supervised visits with the girls.
Mother was admitted to Santa Maria Hostel for inpatient drug rehabilitation
in early May 2015. According to her therapist at Santa Maria, she was actively
participating and receiving drug treatment services through the summer. She tested
negative for drugs in early July. On August 25, 2015, however, she pleaded guilty
to and began serving her sentence on a theft charge that was pending at the time
the children were removed.2 Following her release, Mother was admitted to Sally’s
2
Mother was sentenced to 180 days in Harris County jail. The record suggests she served about
30 days of that sentence before being released.
2
House, a temporary home for women who have completed a drug rehabilitation
program.
Kimberly Bramlett of Child Advocates, Inc., the girls’ guardian ad litem,
met with Lizzie at her school in December 2015. Lizzie reportedly told Bramlett
that if she or Leigh get in trouble, their step-grandfather puts them in time out,
makes them kneel on raw grains of rice, or gives them a “whooping.” Child
Advocates considered that discipline a violation of the Department’s rule, of which
the grandmother and her husband were aware, that the girls not be physically
disciplined. Further, Lizzie said she and Leigh spent one night the previous
weekend at their paternal grandparents’ house with Lizzie’s father, who had
recently been released from prison. It is not clear from the record whether that visit
was approved by the Department in accordance with the trial court’s order
regarding visitation. Following a hearing, the trial court ordered that the girls be
moved from the maternal grandparents’ house to a foster home. They remained in
that foster home through trial.
Trial was held on March 29, 2016. The Department presented testimony
from caseworker Monica Farrow, drug testing facility owner Bruce Jeffries, and
Child Advocates volunteer Mabel Rogers. Mother testified and offered
documentary evidence but did not call other witnesses.
The trial court’s judgment states Mother engaged in the conduct described in
subsections E (endangerment), O (failure to comply with court order), and P
(substance abuse in certain situations) of section 161.001(b)(1) of the Family
Code.3 See Tex. Fam. Code Ann. § 161.001(b)(1). The judgment also states
3
The numbering of section 161.001 changed effective April 2, 2015. Section 161.001(1) is now
section 161.001(b)(1). Although the trial court’s judgment cites the previous version, Mother’s
case began after April 2, 2015 and is therefore governed by the current version. We refer to the
current version in this opinion.
3
termination of Mother’s parental rights is in the children’s best interest. Id.
§ 161.001(b)(2).
On appeal, Mother challenges the sufficiency of the evidence to support the
trial court’s findings. She does not challenge the appointment of the Department as
managing conservator.
ANALYSIS
I. Burden of proof and standards of review
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex.
1980); In re S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied). Although parental rights are of constitutional magnitude, they are not
absolute. The child’s emotional and physical interests must not be sacrificed
merely to preserve the parent’s rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to clear and convincing evidence. See Tex. Fam.
Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002). “‘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 sought to be established.” Tex. Fam. Code Ann. § 101.007; accord
J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened
standard of review. S.R., 452 S.W.3d at 358.
Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act described in section
161.001(b)(1) of the Texas Family Code, and (2) termination is in the best interest
of the child. Tex. Fam. Code Ann. § 161.001(b). Only one predicate finding under
section 161.001(b)(1) is necessary to support a decree of termination when there is
4
also a finding that termination is in the child’s best interest. In re A.V., 113 S.W.3d
355, 362 (Tex. 2003).
In reviewing the legal sufficiency of the evidence in a termination case, we
must consider all the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or
conviction that its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex.
2009); J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. We assume the fact finder
resolved disputed facts in favor of its finding if a reasonable fact finder could do
so, and we disregard all evidence a reasonable fact finder could have disbelieved.
J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266.
In reviewing termination findings for factual sufficiency of the evidence, we
consider and weigh all the evidence, including disputed or conflicting evidence.
See J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed
evidence that a reasonable fact finder could not have credited in favor of the
finding is so significant that a fact finder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” J.F.C., 96 S.W.3d
at 266. We give due deference to the fact finder’s findings, and we cannot
substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006) (per curiam). The fact finder is the sole arbiter when
assessing the credibility and demeanor of witnesses. Id. at 109. We are not to
“second-guess the trial court’s resolution of a factual dispute by relying on
evidence that is either disputed, or that the court could easily have rejected as not
credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
5
II. Sufficient evidence supports the trial court’s finding of endangerment.
A. Legal standards
Parental rights may be terminated if a parent “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.” Tex. Fam. Code Ann.
§ 161.001(b)(1)(E). “To endanger” means to expose a child to loss or injury or to
jeopardize a child’s emotional or physical health. See In re M.C., 917 S.W.2d 268,
269 (Tex. 1996); S.R., 452 S.W.3d at 360.
The evidence must show the endangerment was the result of the parent’s
conduct, including acts, omissions, or failures to act. In re J.T.G., 121 S.W.3d 117,
125 (Tex. App.—Fort Worth 2003, no pet.). Termination under subsection E must
be based on more than a single act or omission; the statute requires a voluntary,
deliberate, and conscious course of conduct by the parent. Id. A court properly may
consider actions and inactions occurring both before and after a child’s birth to
establish a “course of conduct.” In re S.M., 389 S.W.3d 483, 491–92 (Tex. App.—
El Paso 2012, no pet.). While endangerment often involves physical endangerment,
the statute does not require that conduct be directed at a child or that the child
actually suffers injury; rather, the specific danger to the child’s well-being may be
inferred from the parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738–39 (Tex.
App.—Fort Worth 2004, pet. denied). A parent’s conduct that subjects a child to a
life of uncertainty and instability endangers the child’s physical and emotional
well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.—Fort Worth 2013), aff’d,
437 S.W.3d 498 (Tex. 2014).
Courts may consider conduct both before and after the Department removed
the child from the home. See Avery, 963 S.W.2d 550, 553 (Tex. App.—Houston
6
[1st Dist.] 1997, no writ) (considering persistence of endangering conduct up to
time of trial); In re A.R.M., No. 14–13–01039–CV, 2014 WL 1390285, at *7 (Tex.
App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (considering pattern
of criminal behavior and imprisonment through trial).
B. Criminal history
Evidence of criminal conduct, convictions, or imprisonment is relevant to a
review of whether a parent engaged in a course of conduct that endangered the
well-being of the child. In re S.R., 452 S.W.3d at 360–61; A.S. v. Tex. Dep’t of
Family & Protective Servs., 394 S.W.3d 703, 712–13 (Tex. App.—El Paso 2012,
no pet.).
Mother was charged in Harris County with theft of property valued at more
than $50 and less than $500 in October 2007. She pleaded guilty and was
sentenced to 20 days in county jail. In November 2009, she was convicted of a
similar theft in Fort Bend County. The record does not indicate her sentence for
that conviction.
In April 2010, Mother was indicted for attempting to obtain a controlled
substance by a fraudulent prescription, a third-degree felony. She pleaded guilty,
was placed on deferred adjudication for two years, and was ordered to serve 30
days in county jail. The State filed a motion to adjudicate guilt in January 2013,
alleging many drug-related violations of the terms of her community supervision.
The alleged violations included: (1) unlawfully obtaining or attempting to obtain a
dangerous drug, alprazolam, in September 2010; (2) adding Xanax to a
prescription given to her by her psychiatrist in September 2010, which resulted in
her unsuccessful discharge from a drug and alcohol treatment program; (3) using
marijuana as evidenced by tests conducted in September 2012 and December 2012;
7
and (4) failing to attend or provide proof of attendance at Alcoholics Anonymous
meetings.
After the State filed its motion to adjudicate, the trial court issued an arrest
warrant for Mother. She was arrested on April 16, 2013, but gave the arresting
officer a false name, a class A misdemeanor. Mother was charged with that
offense.
The trial court signed a judgment adjudicating guilt on April 23, 2013 and
sentenced Mother to two years’ imprisonment in the Institutional Division of the
Texas Department of Criminal Justice. Two weeks later, she pleaded guilty to the
false-name charge and was sentenced to 45 days’ confinement in county jail. The
record does not reflect how much of either sentence she served.
Mother was free by June of 2014, however, because she was arrested at that
time for theft as a third offender. She and the State entered a plea bargain by which
she pleaded guilty to the lesser charge of theft. The trial court sentenced her to
serve 180 days in county jail.4
C. Drug use
A parent’s drug use can qualify as a voluntary, deliberate, and conscious
course of conduct endangering the child’s well-being. See S.R., 452 S.W.3d at 361;
In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no
pet.). Continued drug use may be considered as establishing an endangering course
of conduct. S.R., 452 S.W.3d at 361–62.
As discussed above, Mother has a history of drug use. She pleaded guilty to
attempting to obtain a controlled substance by a fraudulent prescription in April
2010, and the State alleged she made a second attempt in September 2010. She
4
This sentence is the one mentioned in the background section of this opinion.
8
ingested marijuana in violation of the terms of her community supervision at least
twice in late 2012.
Mother tested positive for cocaine and marijuana in late April 2015. Bruce
Jeffries, who owns the drug testing facility at which Mother was tested, testified
that her cocaine level of 2,681 picograms meant she used cocaine more than once
but not every day. Her marijuana level of .1 picogram was “very low” and “right at
the cut off level.”
Mother began inpatient drug rehabilitation treatment in early May 2015. She
was negative for all tested substances when she submitted to a urinalysis and hair
follicle test in early July. She was in jail for roughly a month beginning at the end
of August. When tested on October 6, 2015, she was again negative for drugs.
Beginning a few months later, though, Mother was positive for drugs each
time she was tested. She was positive for opiates and marijuana in December 2015;
cocaine, marijuana, and alcohol in January 2016; and opiates and benzodiazepine
in February 2016. Mother attributed some of her drug use to depression from not
being with her children. She claimed the other positive results were simply wrong.
D. Conclusion on endangerment
Considered in the light most favorable to the trial court’s finding, the
evidence is legally sufficient to support the trial court’s determination that
termination of Mother’s parental rights was justified under section
161.001(b)(1)(E) of the Family Code. J.O.A., 283 S.W.3d at 344; J.F.C., 96
S.W.3d at 266. Further, in view of the entire record, we conclude the disputed
evidence is not so significant as to prevent the trial court from forming a firm
belief or conviction that termination was warranted under section
161.001(b)(1)(E). Accordingly, we conclude the evidence is factually sufficient to
support the section 161.001(b)(1)(E) finding.
9
In light of our conclusion regarding the trial court’s finding on subsection E,
we need not make a determination as to its findings on subsections O or P. See
A.V., 113 S.W.3d at 362. We overrule Mother’s first three issues.
III. Sufficient evidence supports the trial court’s best-interest finding.
In Mother’s fourth issue, she asserts the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental
rights is in the children’s best interest. We review the entire record in deciding a
challenge to the court’s best-interest finding. In re E.C.R., 402 S.W.3d 239, 250
(Tex. 2013).
Termination must be in the child’s best interest. Tex. Fam. Code Ann.
§ 161.001(b)(2). There is a strong presumption that the best interest of a child is
served by keeping the child with the child’s parent. In re R.R., 209 S.W.3d 112,
116 (Tex. 2006) (per curiam). Prompt, 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).
Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best-interest finding: the desires of the
child; the physical and emotional needs of the child now and in the future; the
emotional and physical danger to the child now and in the future; the parental
abilities of the persons seeking custody; the programs available to assist those
persons seeking custody in promoting the best interest of the child; the plans for
the child by the individuals or agency seeking custody; the stability of the home or
proposed placement; acts or omissions of the parent that may indicate the existing
parent-child relationship is not appropriate; and any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). As noted, this
list of factors is not exhaustive, and evidence is not required on all the factors to
10
support a finding that termination is in the child’s best interest. In re D.R.A., 374
S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
In addition, the Family Code sets out thirteen factors to be considered in
evaluating a parent’s willingness and ability to provide the child with a safe
environment. See Tex. Fam. Code Ann. § 263.307(b). Those factors are: (1) the
child’s age and physical and mental vulnerabilities; (2) the frequency and nature of
out-of-home placements; (3) the magnitude, frequency, and circumstances of harm
to the child; (4) whether the child has been the victim of repeated harm after the
initial report and intervention by the Department; (5) whether the child is fearful of
living in or returning to the child’s home; (6) the results of psychiatric,
psychological, or developmental evaluations of the child, the child’s parents, other
family members, or others who have access to the child’s home; (7) whether there
is a history of abusive or assaultive conduct by the child’s family or others who
have access to the child’s home; (8) whether there is a history of substance abuse
by the child’s family or others who have access to the child’s home; (9) whether
the perpetrator of the harm to the child is identified; (10) the willingness and
ability of the child’s family to seek out, accept, and complete counseling services
and to cooperate with and facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time;
(12) whether the child’s family demonstrates adequate parenting skills, including
providing the child with: (a) minimally adequate health and nutritional care;
(b) care, nurturance, and appropriate discipline consistent with the child’s physical
and psychological development; (c) guidance and supervision consistent with the
child’s safety; (d) a safe physical home environment; (e) protection from repeated
exposure to violence even though the violence may not be directed at the child; and
(f) an understanding of the child’s needs and capabilities; and (13) whether an
11
adequate social support system consisting of an extended family and friends is
available to the child. Id.; R.R., 209 S.W.3d at 116.
A. The children and their foster parents
Caseworker Monica Farrow testified about the girls’ progress throughout the
case. Neither Lizzie nor Leah testified.
From April through December 2015, the girls lived with their maternal
grandparents. They were moved to a foster home on December 15, 2015, on the
trial court’s order following reports of inappropriate discipline by their step-
grandfather.
The girls experienced some difficulty adjusting to the move, in part because
they did not get to spend Christmas with their grandparents as expected. Both
Lizzie’s and Leigh’s grades slipped when they returned to school in January, but
they were improving at the time of trial. Lizzie was receiving special education
services due to deficiencies in reading and math. Leigh was in a mainstream class.
They each saw a therapist weekly while they lived with their grandparents, and
they continued sessions with the same therapist after the move.
Both girls were described as happy in the foster home, though they both
missed their family. Lizzie enjoyed visiting her maternal aunt; they would have
“movie night” or “girls’ night in.” Leigh, reportedly more emotional than her
sister, cried at times because she wanted to be with her family.
Once in the foster home, Lizzie was diagnosed with scoliosis. She has over
50% curvature of the spine. Lizzie said she told her maternal grandmother about
her back pain, and the grandmother gave her ibuprofen, but it didn’t help. The
doctor explained that Lizzie would need surgery eventually but was too young to
have it. Instead, she is to wear a back brace 18 hours a day to slow the progression
12
of the curving. Lizzie has also been diagnosed with attention deficit hyperactivity
disorder, for which she takes medication.
Farrow and Mabel Rogers, the Child Advocates volunteer, both believed it
was in the girls’ best interest for Mother’s parental rights to be terminated and for
the girls to remain in the foster home, even though the foster parents were not
willing to adopt. Living with Mother was not in their best interest, Farrow testified,
due to Mother’s ongoing substance abuse, inconsistency with completing required
psychological and drug-treatment services, lack of suitable home, and instability of
employment. Rogers testified Lizzie and Leigh had bonded with their foster
parents and were doing much better in school.
B. Mother
Endangerment. The evidence that Mother endangered her children, detailed
above, is relevant to the best-interest analysis. S.R., 452 S.W.3d at 366.
Department history. Mother was referred to the Department three times
before the events at issue in this case. The appellate record does not reflect the
details of the referrals.
The Department received a report in June 2005 of Mother’s neglectful
supervision of Lizzie, who was almost a year old. The Department could not locate
Mother but found risk was indicated. The case was referred to FBSS, and Lizzie
was placed with her maternal grandmother.
Mother was again reported on August 1, 2006, for neglectful supervision of
Leigh, who was born the previous day. The Department ruled the allegations
“unable to determine” and again referred the case to FBSS. Mother participated in
FBSS through the beginning of 2009. At that time, the Department found that the
risk was reduced because Mother tested negative for drugs, was under the care of a
psychiatrist, was taking her medication, and had family support.
13
A third report was made in September 2010 alleging neglectful supervision
by Mother of Lizzie, Leah, and Mother’s third child. The Department ruled out
those allegations.
Failure to complete court-ordered services. The trial court ordered Mother
to complete the family service plan created for her by the Department. She was
required to, among other things, successfully complete inpatient and subsequent
outpatient drug treatment. She had to attend daily Alcoholics Anonymous and/or
Narcotics Anonymous meetings, obtain a sponsor, and participate in groups and
lectures focusing on relapse dynamics and prevention. Mother was subject to
random drug testing. She had to complete a 6–8 week parenting class and provide
the certificate of completion to her caseworker. Mother was required to have
psychological, psychosocial, and substance abuse assessments and follow the
assessors’ recommendations. Further, she was obligated to obtain and maintain a
job and a safe home and provide documentation of both.
Mother did not complete several portions of the service plan. Though she
was admitted for inpatient drug rehabilitation and was doing well in the program,
she did not follow the recommendations for her outpatient treatment. She
scheduled but failed to appear at some of the required assessments and counseling
sessions. Mother’s proffer of hospital records concerning a March, 2016 admission
reflect the reason for her visit was “Altered Mental Status, Possible Benzo
Withdrawal.”
Mother failed to comply with the requirement that she maintain stable
employment or demonstrate, by monthly income statements or copies of the
enrollment papers, that she is enrolled in a vocational or educational training
program. She said she was attending cosmetology school and earning money
through the school’s work-study program, but she did not submit documentation of
14
her employment. Mother provided evidence of prior enrollment at Jay’s Technical
Institute. Those records indicate she started classes in February 2009 and last
attended class in May 2009. Her attendance rate was 38.32%. As of June 2016, her
enrollment status was “withdrawn.”
Further, Mother did not provide a lease agreement or mortgage in her name
to prove she acquired and maintained stable housing for more than six months.
After she was released from jail, roughly six months before trial, she had a room at
Sally’s House. She left after two months so she could get a job; she said she would
have been required to live at Sally’s House for four to five months before she
would be permitted to work or attend school. Following Sally’s House, she lived
with her sister, then with a male friend, and then with another male friend. At some
point thereafter, Mother told the caseworker she had her own housing, but she did
not provide the lease or other documentation. At the time of trial, Mother was
reportedly living with two female roommates in an apartment. When asked
whether she was able to “afford the rent,” Mother testified she was currently
relying on a church to assist them in paying rent and obtaining food.
C. Conclusion on best interest
The evidence shows that Lizzie and Leigh were doing well in their foster
home. Lizzie has educational and physical needs that require special attention, and
the foster parents are attending to both. Mother has a history of drug abuse and
drug-related crimes. Though she made progress towards sobriety in the first several
months this case was pending, she relapsed and tested positive for drugs three
times in the five months before trial. She was not able to provide a stable home for
the children at the time of trial.
15
Considering all the evidence, we conclude the evidence is legally and
factually sufficient to support the trial court’s finding that termination of Mother’s
parental rights is in the children’s best interest. We overrule Mother’s fourth issue.
CONCLUSION
We affirm the trial court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices McCally, Busby, and Donovan.
16