in the Interest of Z.J.J. and Z.J. ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-15-00025-CV
_________________
IN THE INTEREST OF Z.J.J. AND Z.J.
________________________________________________________________________
On Appeal from the 317th District Court
Jefferson County, Texas
Trial Cause No. C-207,449-D
________________________________________________________________________
MEMORANDUM OPINION
In this accelerated appeal, S.D. (the Mother) appeals the trial court’s order of
termination, terminating her parental rights to her children Z.J.J. and Z.J. 1 The
Mother raises two issues on appeal.2 We affirm the trial court’s judgment.
Procedural and Factual Background
In December of 2011, the Department of Family and Protective Services (the
Department) filed a suit affecting the parent-child relationship, wherein the
1
To protect the identity of the minors, we have not used the names of the
children, parents, or other family members. See Tex. R. App. P. 9.8.
2
Z.J.S. (the Father) is not a party to this appeal.
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Department sought to terminate the Mother and Z.J.S.’s (the Father) parental rights
to Z.J.J. and Z.J. The trial court awarded the Department temporary, primary
conservatorship of the children. On June 9, 2012, the Department placed Z.J.J. and
Z.J. with S.A.C. and A.L.C. (the Foster Parents). On October 28, 2014, the Foster
Parents filed their petition in intervention seeking primary conservatorship,
termination of the Mother and the Father’s rights, and adoption of the children. The
trial court granted the Foster Parent’s intervention. The Department dismissed its
case and is no longer a party to the suit.
The trial court appointed the children an attorney ad litem. Based on his
investigation, the attorney ad litem recommended that the trial court terminate the
Mother’s parental rights and indicated his belief that termination was in the
children’s best interest. After a bench trial, the trial court terminated the parental
rights of the Mother and the Father to the children and appointed the Foster Parents
sole managing conservators of Z.J.J. and Z.J. At the time of trial, Z.J.J. was five
years old, and Z.J. was three years old.
Legal and Factual Sufficiency
In her first issue, the Mother challenges the legal and factual sufficiency of
the evidence supporting the trial court’s judgment. In our review of the legal
sufficiency of the evidence in a parental rights termination case, we “look at all the
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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 finder of fact resolved the disputed facts in favor of its finding if a reasonable
factfinder could do so, and we disregard all evidence that a reasonable factfinder
could have disbelieved or found to have been incredible. Id. We are not required to
disregard all evidence that does not support the finding. Id. If no reasonable finder
of fact could form a firm belief or conviction that the matter that must be proven is
true, then we must conclude that the evidence is legally insufficient. Id.
In our review of the factual sufficiency of the evidence in a parental rights
termination case, we “must give due consideration to evidence that the factfinder
could reasonably have found to be clear and convincing.” Id. (citing In re C.H., 89
S.W.3d 17, 25 (Tex. 2002)). As the reviewing court, we must answer “‘whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction
about the truth of the . . . allegations.’” Id. (quoting C.H., 89 S.W.3d at 25). We
consider whether a reasonable factfinder could not have resolved the disputed
evidence in favor of its finding. Id. “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
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conviction, then the evidence is factually insufficient.” Id. We give due deference
to the factfinder’s findings and we cannot substitute our own judgment for that of
the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is
the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at
109.
Predicate Grounds for Termination
The trial court found that the Mother (1) knowingly placed or knowingly
allowed Z.J.J. and Z.J. to remain in conditions or surroundings that endangered
their physical or emotional well-being, (2) engaged in conduct or knowingly
placed Z.J.J. and Z.J. with persons who engaged in conduct that endangered their
physical or emotional well-being, and (3) failed to support Z.J.J. and Z.J. in
accordance with her ability during a period of one year ending within six months
of the date of the filing of the petition. For the reasons discussed below, we
conclude that the record contains clear and convincing evidence to support the trial
court’s findings that the Mother engaged in conduct or knowingly placed Z.J.J. and
Z.J. with persons who engaged in conduct that endangered their physical or
emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(E) (West 2014).
To terminate a parent-child relationship, it must be shown by clear and
convincing evidence that the parent has committed at least one of the predicate acts
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listed in section 161.001(1) of the Texas Family Code and that termination is in the
best interest of the child. Id. § 161.001(1), (2). Clear and convincing evidence is
defined as “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.” Id. § 101.007.
Subsection 161.001(1)(E) permits termination when clear and convincing
evidence shows that the 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.” Id. § 161.001(1)(E). “‘[E]ndanger’” means “to expose to
loss or injury; to jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). Termination under subsection 161.001(1)(E) must be based
on more than a single act or omission; there must be a voluntary, deliberate, and
conscious course of conduct by the parent. In re A.D., No. 09-14-00280-CV, 2014
WL 6984269, at *6 (Tex. App.—Beaumont Dec. 11, 2014, no pet.) (mem. op.); see
also In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no
pet.). In our evaluation of this predicate ground for termination, we consider
evidence of conduct that occurred both before and after a child’s birth. A.D., 2014
WL 6984269, at *6. It is not necessary that the parent’s conduct be directed at the
child or that the child actually suffers an injury. Boyd, 727 S.W.2d at 533. Because
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illegal drug use exposes a child to the possibility that the parent may be impaired
or imprisoned, such use may support termination under subsection 161.001(1)(E).
Walker v. Tex. Dep’t Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied); see also In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009); In re Z.C., 280 S.W.3d 470, 474 (Tex. App.—Fort Worth
2009, pet. denied). Continued illegal drug use after a child’s removal is conduct
that jeopardizes parental rights and may be considered as establishing an
endangering course of conduct. Cervantes-Peterson v. Tex. Dep’t of Family &
Protective Servs., 221 S.W.3d 244, 253-54 (Tex. App.—Houston [1st Dist.] 2006,
no pet.). Domestic violence may also support an endangerment finding, even if the
violence is not directed at the child. J.O.A., 283 S.W.3d at 346; see also In re
C.J.O., 325 S.W.3d 261, 265 (Tex. App.—Eastland 2010, pet. denied) (“Domestic
violence may be considered evidence of endangerment. If a parent abuses or
neglects the other parent or other children, that conduct can be used to support a
finding of endangerment even against a child who was not yet born at the time of
the conduct.”) (citations omitted). To determine whether subsection (E) supports
termination, we look to the Mother’s conduct both before and after the children’s
removal from her care. See In re O.R.F., 417 S.W.3d 24, 37 & n.11 (Tex. App.—
Texarkana 2013, pet. denied).
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Child Protective Services (CPS) first removed Z.J.J. from the Mother’s care
in May of 2011 when Z.J.J., nearly two years old, had been found outside of the
residence alone and unsupervised. The Mother testified that she left Z.J.J. in her
cousin’s care while the Mother went to work. She explained that her cousin was
thirty-three years old at the time and had moved in with the Mother temporarily to
get away from an abusive boyfriend. According to the Mother, the boyfriend found
out that the cousin was staying with the Mother. The boyfriend came over to the
Mother’s apartment and the cousin left with him, leaving Z.J.J. without adult
supervision. The Mother agreed that she made a poor choice to leave Z.J.J. with
her cousin.
Between May and November of 2011, the Mother, while pregnant with Z.J.,
tested positive for PCP on three separate occasions, and tested positive for Xanax
once. Z.J.J. was in the Mother’s care during this time. When the Mother gave birth
to Z.J. in December of 2011, the Mother tested positive for PCP.
The Mother testified she first used marijuana when she was seventeen years
old and first used PCP when she was twenty-five years old. She admitted that she
used marijuana and PCP during her pregnancy with Z.J. She testified that she
regrets daily that she ingested PCP while she was pregnant with Z.J. The Mother
admitted that she engaged in drug use while the children were in her care.
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After the birth of Z.J., because of the Mother’s continued drug use, unstable
employment, and unstable housing history, CPS removed Z.J.J. and Z.J. from the
Mother’s care in January of 2012 and placed the children in a foster home. At first,
the Mother participated in and completed items identified in her service plan. The
Mother completed a drug treatment program, a parenting class, an anger
management class, and a psychological examination. As a result of the Mother’s
progress, in June of 2012, CPS returned Z.J.J. and Z.J. to the Mother. The children
remained in the Mother’s care for about three days before CPS had to remove them
when the Mother was arrested after a traffic stop for outstanding warrants. The
children were in the vehicle with the Mother when she was arrested. At the time of
her arrest, marijuana was found inside the vehicle the Mother was driving. The
Mother denied knowing the marijuana was in the vehicle and denied that it
belonged to her. The Mother admitted that her brother, who has a criminal history
related to drugs, and her cousin, who also has a criminal history, were in the
vehicle with her and her children when she was pulled over. She denied knowing
that her brother and cousin had drugs in their possession. According to the Mother,
she was not arrested for possession of drugs at that time.
After the second removal, the Mother received a new service plan, but failed
to comply with its terms. Sometime after June of 2012, while CPS was monitoring
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the Mother, the Mother tested positive for narcotic drugs— specifically,
hydrocodone—during a visitation. The CPS worker assigned to the children
testified that in her opinion, the Mother lacks the ability or capacity to make
appropriate decisions to keep her children safe.
The Mother testified that she no longer uses illegal drugs and indicated that
she was willing to have a drug test. She testified that she has maintained sobriety
since 2012. The Mother explained she had legitimately taken hydrocodone for a
toothache. According to the Mother, she had received a prescription for
hydrocodone, but because she did not have insurance, she did not fill her
prescription and instead took a hydrocodone pill from a friend. However, the
Mother did not offer a written prescription into evidence to support her contention.
The Mother presented other witnesses to corroborate her testimony
regarding her current sobriety. The Mother’s sister testified that the Mother was no
longer abusing drugs and had been clean for two years. At the time of trial, the
judge heard testimony that the Mother’s sister was under CPS investigation herself
due to the death of her own child. One of the Mother’s friends also testified that
she believed the Mother lived a life of sobriety. The Mother’s friend indicated that
she also believed the Mother to be a very charitable person and explained that the
Mother has given her money, gifts, food, and clothing for the friend’s child. The
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Mother’s uncle testified that the Mother leads a drug-free life. The uncle had been
incarcerated for sixteen years for a murder conviction and was released in 2012.
The Mother testified that the Father accompanied her to some of the visits
she had with the children. When asked if the Father was an appropriate person for
the children to be around, the Mother responded that he is their father, but later
admitted that he was not appropriate. She testified that her attorney accidentally
sent the visitation information to the Father’s address instead of hers, so it was not
her fault that the children were exposed to the Father.
A CPS employee assigned to the Mother’s case testified that the Mother
continues to find herself entangled in criminal activities. The Mother was arrested
in March of 2011 for a DWI. The Mother received probation for the DWI, but
because she had failed to comply with the terms of her probation, she was arrested
on a revocation warrant in June 2012. The Mother was arrested and convicted in
2012 for domestic violence.
The record also reflects that the Mother has anger issues. There is evidence
in the record that at least one witness observed the Mother’s angry outbursts after a
visitation with the children. This outburst occurred after the Mother had
participated in anger management classes. The Mother denied being angry during
or after her visits with the children. The Mother attempted to explain her language
10
by stating to the court that everyone uses curse words and that her circumstances
justified the use of such words. Other witnesses testified that the Mother’s
interaction with the children during the visits was appropriate, and they did not
report observing any outbursts. The children’s foster mother testified that the
children seem antsy, nervous, and afraid after their visits with the Mother. She
testified that the Mother’s parenting is very different than hers, and she explained
that the Mother is rough, loud, and aggressive with the children. She testified that
after the visits, Z.J.J. is afraid that the Mother will come and try to get him. The
foster mother testified that she is personally afraid of the Mother. The Mother
admitted to making bad choices in the past, but claimed that she has changed and
that she loves her children and wants them to be with her.
From our review of the record, we conclude the evidence supports the trial
court’s endangerment finding under subsection (E). The record shows that the
Mother has a history of using illegal drugs. The Mother used illegal drugs before
the children’s removal, when Z.J.J. was in her possession, and while she was
pregnant with Z.J. The Mother admitted that she was under the influence of drugs
while Z.J.J. was in her care. Even after the children had been removed from her
and her parental relationship with the children was in jeopardy, the Mother tested
positive for narcotic drug use. The trial court could have credited the evidence of
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the Mother’s illegal drug use and other criminal activity, as well as her continued
contact with others that had drug-related and criminal offenses, to find that the
Mother engaged in a conscious course of conduct that endangered her children.
Viewing the evidence in the light most favorable to the endangerment
finding under subsection (E), we conclude the trial court could have formed a firm
belief or conviction that the Mother “engaged in conduct . . . which endanger[ed]
the physical or emotional well-being of the child[ren].” See Tex. Fam. Code Ann. §
161.001(1)(E); J.F.C., 96 S.W.3d at 266. Furthermore, based on our review of the
record, we conclude that the evidence is such that the trial court reasonably could
have formed a firm belief or conviction about the truth of the allegations against
the Mother. We conclude that the evidence is legally and factually sufficient to
support the trial court’s finding under section 161.001(1)(E).3
Best Interest of the Children
The trial court found that termination was in the children’s best interest. The
Mother contends the evidence is legally and factually insufficient to support this
finding. Regarding the children’s best interest, we consider a non-exhaustive list of
3
We need not address the sufficiency of the evidence to support a violation
of subsections (1)(D) or (F). See In re D.S., 333 S.W.3d 379, 388 (Tex. App.—
Amarillo 2011, no pet.) (“If multiple predicate grounds are found by the trial court,
we will affirm based on any one ground because only one is necessary for
termination of parental rights.”).
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factors: (1) desires of the children; (2) emotional and physical needs of the children
now and in the future; (3) emotional and physical danger to the children now and
in the future; (4) parental abilities of the individual seeking custody; (5) programs
available to assist this individual to promote the best interest of the children; (6)
plans for the children by this individual or by the agency seeking custody; (7)
stability of the home or proposed placement; (8) acts or omissions of the parent
which may indicate that the existing parent-child relationship is not proper; and (9)
any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976); see also Tex. Fam. Code Ann. § 263.307(b) (West 2014).
In reviewing the trial court’s decision to terminate a parent’s relationship with a
child, we consider that “there is a strong presumption that the best interest of a
child is served by keeping the child with a parent.” In re R.R., 209 S.W.3d 112,
116 (Tex. 2006). The party seeking termination need not prove that each Holley
factor favors termination. C.H., 89 S.W.3d at 27. A trial court’s best interest
finding “is not dependent upon, or equivalent to, a finding that the child has been
harmed by abuse or neglect or is in danger of such harm[,]” but rather it “is a term
of art encompassing a much broader, facts-and-circumstances based evaluation that
is accorded significant discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013).
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As explained above, the Mother has a history of using illegal drugs; there is
evidence that she did so while she had custody of Z.J.J., while she was pregnant
with Z.J., and after the children’s removal. A parent’s drug use also supports a
finding that termination is in the best interest of the children. See In re M.R., 243
S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.). Because drug-related
conduct is a significant factor, the factfinder can give great weight to such
evidence when it is present. In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas
2007, no pet.).
The evidence also supports that the Mother lacked stable living
arrangements for the children both before and throughout the pendency of this
case. There is evidence in the record that the Mother had a number of different
residences and, at least on one occasion, did not have independent housing. At the
time of trial, however, the Mother testified that she had obtained government
housing of a three-bedroom apartment, which would allow the children to have
their own furnished bedrooms.
Additionally, the Mother had not demonstrated that she had the financial
ability to provide for the children. At the time of trial, the Mother was unemployed.
The Mother has a history of unstable employment. The Mother testified that she
was starting school in January to become a process operator. She testified that she
14
would look for part-time work that did not conflict with her school schedule. The
Mother qualified for a Pell Grant and had plans to use those funds to pay for her
education.
As a consequence of the children’s removal, the Mother had little
opportunity to bond with Z.J.J. and Z.J. However, the record demonstrated that
both Z.J.J. and Z.J. have bonded with the Foster Parents with whom they had been
living for nearly three years at the time of trial. The foster mother testified that the
children were placed in her home June 9, 2012, and at that time, Z.J.J. was almost
three years old and Z.J. was five months old. She testified that the children are
attached to them. The foster father also testified that he has bonded with the
children. A number of witnesses testified that the Foster Parents have provided a
safe, appropriate, stable home for the children. Other witnesses corroborated the
foster mother’s testimony that the children have bonded with them. The Mother
even agreed that Z.J. has spent most of her life with the Foster Parents and has
bonded with them. The Mother testified that the Foster Parents have been good
caregivers to her children.
The Mother countered with testimony that she has also bonded with the
children. The Mother testified that Z.J.J. has told her that he wants to come home.
The Mother presented other witnesses to corroborate her testimony. However, the
15
foster mother testified that after visiting with the Mother, Z.J.J. becomes fearful
that the Mother will come and try to take him from the Foster Parents.
The Foster Parents want to adopt the children if the parental rights of the
Mother and the Father are terminated. The testimony at trial supports that the
Foster Parents demonstrate the appropriate love, care, and affection the children
need. According to the foster mother, the children are doing well in their home.
After considering the relevant Holley factors under the appropriate standards
of review, we conclude the evidence supports the trial court’s best-interest finding.
Specifically, when we view the evidence in the light most favorable to the best
interest finding, we conclude the trial court reasonably could have formed a firm
belief or conviction that termination was in the best interest of Z.J.J. and Z.J. Based
on our review of the entire record, we further conclude that the trial court could
reasonably have formed a firm belief or conviction that it would be in the best
interest of both children for the Mother’s parental rights to be terminated. The
evidence is both legally and factually sufficient to support the best interest finding.
We overrule the Mother’s first issue.
In her second issue, the Mother argues that the trial court’s judgment
erroneously indicates that the children’s father was present and appeared in person
at the proceedings. The Mother does not contend that the Father did not receive
16
proper notice. In fact, in her brief she states, “All parties were properly served with
notice and citation.” The Father is not a party to this appeal. Therefore, we
overrule this issue.
Having overruled all of the Mother’s issues on appeal, we affirm the trial
court’s judgment.
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on June 26, 2015
Opinion Delivered July 30, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.
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