in the Interest of J.J.C., A.C., Je.J.C., Children ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00577-CV
IN THE INTEREST OF J.J.C., A.C., Je.J.C., Children
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02118
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: January 28, 2015
AFFIRMED
Appellant A.C. (Father) appeals the trial court’s order terminating his parental rights to
J.J.C. and A.C. 1 We affirm the judgment of the trial court.
ANALYSIS
On appeal, Father complains that the evidence is legally and factually insufficient to
support the court’s findings of statutory grounds for termination and its finding that termination is
in the children’s best interest.
1
The judgment states that appellant A.C.’s parental rights were terminated as to his known children J.J.C. and A.C.
Although appellant is the presumed father of the two year old child Je.J.C., the judgment states that the father of Je.J.C.
is unknown as no admission of paternity was filed, and terminates the parental rights of the unknown father. The
mother’s rights to all three children were also terminated.
04-14-00577-CV
Standard of Review
To terminate parental rights pursuant to section 161.001 of the Family Code, the
Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(1);
and (2) that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(1),
(2) (West 2014); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is
the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C.,
96 S.W.3d 256, 263 (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 (West 2014). Due
process demands this heightened standard because termination results in permanent, irrevocable
changes for the parent and child. In re J.F.C., 96 S.W.3d at 263; see In re J.A.J., 243 S.W.3d 611,
616 (Tex. 2007) (contrasting standards for termination and modification of conservatorship order).
In reviewing the legal sufficiency of the evidence to support the termination of parental
rights, we view all the evidence in the light most favorable to the trial court’s findings and
judgment to determine whether a reasonable trier of fact could have formed a firm belief or
conviction that the findings are true. In re J.F.C., 96 S.W.3d at 266. We assume that the factfinder
resolved 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. Id. In reviewing factual
sufficiency, we consider whether the disputed evidence is such that a reasonable factfinder could
not have resolved that 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 conviction, then
the evidence is factually insufficient.” Id.
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Statutory Grounds
At the conclusion of the bench trial, the trial court found the following four statutory
grounds for termination of Father’s parental rights: (i) engaging in conduct or knowingly placing
the child with persons who engaged in conduct which endangered the physical or emotional well-
being of the child; (ii) constructively abandoning the child who has been in the permanent or
temporary managing conservatorship of the Department for not less than six months; (iii) failing
to comply with the family service plan; and (iv) knowingly engaging in criminal conduct that
resulted in conviction of an offense and confinement and inability to care for the child for not less
than two years. See TEX. FAM. CODE ANN. §§ 161.001(1)(E), (N), (O), (Q) (West 2014). Although
Father acknowledges that the trial court terminated his parental rights on the basis of four statutory
grounds, he only challenges three of the four grounds on appeal. Father challenges the legal and
factual sufficiency of the evidence to support the findings of endangerment under subsection (E),
constructive abandonment under subsection (N), and failure to complete the family service plan
under subsection (O). However, he does not challenge the court’s finding under subsection (Q)
that he “knowingly engaged in criminal conduct that has resulted in [his] conviction of an offense
and confinement or imprisonment and inability to care for the child for not less than two years
from the date of filing the petition.” TEX. FAM. CODE ANN. § 161.001(1)(Q). Because Father does
not challenge this ground, we need not address his argument that the evidence is insufficient to
support the court’s findings on the other three grounds under section 161.001(1). In re B.K.D.,
131 S.W.3d 10, 16 (Tex. App.—Fort Worth 2003, pet. denied).
In the interest of justice we will, however, consider the sufficiency of the evidence to
support termination under subsection (Q) of section 161.001(1). See In re A.V., 113 S.W.3d at
362. Imprisonment alone is insufficient to justify termination of the parent-child relationship. Tex.
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.P.H., 196 S.W.3d 289,
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294 (Tex. App.—Eastland 2006, no pet.). In order to justify termination of parental rights under
subsection (Q), there must be clear and convincing evidence of both a two-year period of
imprisonment and an inability to care for the child while imprisoned. In re J.P.H., 196 S.W.3d at
294. “[I]f the parent is convicted and sentenced to serve at least two years and will be unable to
provide for his or her child during that time, the State may use subsection Q to ensure that the child
will not be neglected.” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (quoting In re A.V., 113
S.W.3d at 360). The Department must first establish by clear and convincing evidence that the
parent knowingly engaged in criminal conduct that resulted in his conviction and confinement for
at least the two-year period after filing of the petition. TEX. FAM. CODE ANN. § 161.001(1)(Q).
The burden then shifts to the parent to produce some evidence showing that he made arrangements
for the care of the child during his imprisonment. In re H.R.M., 209 S.W.3d at 110; In re
Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied). If the parent meets this
burden of production, then the Department has the burden of persuasion to show that the
arrangements would not satisfy the parent’s duty to the child. In re Caballero, 53 S.W.3d at 396.
Here, it is undisputed that Father was incarcerated from the date the Department filed its
petition to the final termination hearing at which he participated by telephone—a period of ten
months. The evidence shows that Father was imprisoned based on a violation of his parole for two
cases of possession of a controlled substance with intent to deliver. He received a sentence of
eight years’ imprisonment with a release date of March 17, 2017, but stated he will be eligible for
parole in November 2014. Because parole decisions lie entirely within the parole board’s
discretion, mere admission of parole-related evidence does not preclude a fact finder from forming
a firm belief that the parent will remain incarcerated for at least two years. Ex parte Moussazadeh,
64 S.W.3d 404, 413 (Tex. Crim. App. 2001) (orig. proceeding); In re K.R.M., 147 S.W.3d 628,
630 (Tex. App.—San Antonio 2004, no pet.) (stating a father’s “hope that he might be granted
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early release is pure speculation”). As to Father’s ability to care for the children during his
incarceration, there was no evidence that Father had any visits or corresponded with the children
after his incarceration. Further, there was no evidence that Father made any arrangements for the
children’s care during his incarceration, other than leaving them with their mother. “Absent
evidence that the non-incarcerated parent agreed to care for the child on behalf of the incarcerated
parent, merely leaving a child with a non-incarcerated parent does not constitute the ability to
provide care.” In re H.R.M., 209 S.W.3d at 110 (noting that “[c]ases discussing the incarcerated
parent’s provision of support through other people contemplate that the support will come from
the incarcerated parent’s family or someone who has agreed to assume the incarcerated parent’s
obligation to care for the child”). The record contains sufficient evidence to support the trial
court’s finding that the requirements of section 161.001(1)(Q) were met by clear and convincing
evidence.
Best Interest
Father next challenges the evidence as legally and factually insufficient to support the trial
court’s finding that termination of his parental rights is in the children’s best interest. See TEX.
FAM. CODE ANN. § 161.001(2) (requiring clear and convincing evidence “that termination is in the
best interest of the child”). 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). Prompt and permanent
placement of the child in a safe environment is also presumed to be in the child’s best interest. See
TEX. FAM. CODE ANN. § 263.307(a) (West 2014).
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 statutory ground under
subsection (1) and best interest under subsection (2) of section 161.001. Id. at 249; In re C.H., 89
S.W.3d 17, 28 (Tex. 2002). Nonexclusive factors that the trier of fact in a termination case may
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also use in determining the best interest of the child include: (1) the desires of the child; (2) the
emotional and physical needs of the child now and in the future; (3) the emotional and physical
danger to the child now and in the future; (4) the parental abilities of the individuals seeking
custody; (5) the programs available to assist these individuals to promote the best interest of the
child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the
stability of the home or proposed placement; (8) the acts or omissions of the parent which may
indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the
acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (citations
omitted); see In re 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”). These factors are not exhaustive; some listed
factors may be inapplicable to some cases. In re 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 meager
evidence relevant to each factor will not support such a finding. Id.
i. Children’s desires and plans for the children
J.J.C. is seven years old and A.C. is six years old. Melissa Martinez, the caseworker, testified
that the children have been in the care of their maternal great grandmother during the pendency of
the case, and that their needs are being met and they are doing well. She has observed their care
in the great grandmother’s home and it is a long-term option for the children. The great
grandmother intends to pursue legally adopting the children. Martinez also testified that the
children told her they want to continue living with their great grandmother.
ii. Needs of the children, Father’s parenting abilities, and stability of the home
As to the stability of the home, there was evidence that both parents are drug users and
have been convicted of several drug related offenses. During the pendency of the Department’s
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case, Father was in prison serving an eight-year sentence and the mother was placed in a substance
abuse facility due to a violation of her probation. Father testified that his last visit with the children
occurred in August 2013, the month before the Department filed its petition for termination. There
was no evidence that Father has been in contact or been involved in any way with the children
since August 2013. Father did not substantially engage in any of the family services contained in
the Department’s family service plan, including counseling for drug related issues.
iii. Present and future emotional and physical danger to the children
The same evidence may be probative of both section 161.001(1) grounds and best interest,
although such evidence does not relieve the State of its burden to prove best interest. See In re
C.H., 89 S.W.3d at 28. Thus, the court was free to consider the endangerment evidence presented
at trial, including Father’s criminal history consisting primarily of several drug possession and
possession with intent to deliver convictions. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009)
(stating “a parent’s use of narcotics and its effect on his or her ability to parent may qualify as an
endangering course of conduct”); Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d
608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (illegal drug use may support
termination on the ground of endangerment because “it exposes the child to the possibility that the
parent may be impaired or imprisoned”). At trial, Father conceded that he has four prior
convictions for possession of marijuana, two prior convictions for possession with intent to deliver,
and a driving while intoxicated conviction. In addition, the affidavit attached to the Department’s
petition shows that Father also has prior convictions for assault bodily injury-family member,
abandonment/endangerment of a child, forgery, evading arrest with a vehicle, and possession of a
prohibited substance in a correctional facility. Father also has a CPS history with three referrals
for neglectful supervision of the children, one which was ruled “reason to believe” and two which
were “ruled out.” As noted, Father was serving an eight-year sentence for violating parole on two
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of the possession with intent to deliver cases at the time of the termination hearing. “If the
imprisonment of the parent displays a voluntary, deliberate and conscious course of conduct, it
qualifies as conduct that endangers the child.” Walker, 312 S.W.3d at 617 (noting that offenses
that occurred before the child’s birth may still be considered as part of a course of conduct that
endangers the child); see In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014,
no pet.) (fact finder may infer that past conduct endangering the child’s well-being may recur in
the future if the child is returned to the parent). A parent’s conduct that “routinely subjects a child
to the probability that the child will be left alone because a parent is jailed endangers both the
physical and emotional well-being of the child.” Walker, 312 S.W.3d at 617; see In re S.D., 980
S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied).
iv. Availability of assistance
This factor considers whether programs are available to assist the person seeking custody
in promoting the best interests of the child. Martinez testified that she sent the Department’s family
service plan to Father by certified mail but he did not sign and return it and had not substantially
engaged in any of the services set forth in the plan. Martinez also stated that she wrote letters to
Father, but he did not reply or correspond with her at all about the case. Father testified that he
never received the family service plan because he was incarcerated in Beeville and later Beaumont,
not Huntsville as Martinez testified. Finally Martinez testified she did not know what types of
services were available at the prison facility where Father was incarcerated. There was no evidence
that Father had attended any counseling services or other drug-treatment or parenting programs
during his incarceration.
v. Parental acts or omissions
These factors consider acts or omissions of the parent that indicate the existing parent-child
relationship is not a proper one, and any excuses therefor. See Holley, 544 S.W.2d at 372. As
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detailed above, the evidence raised concerns regarding Father’s pattern of drug possession and
drug dealing. Martinez testified there was evidence that Father had taken one of the children, A.C.,
with him on a drug delivery before he was jailed for the parole violation. At the hearing, Father
agreed that his criminal history shows a course of conduct in which he has failed to abide by the
law. Father stated, however, that he wishes to be part of his children’s lives in the future.
In sum, as to the children’s best interest, there was no evidence that Father has the ability
to provide the children with a safe and stable home environment at this time or in the future. See
In re T.G.R.-M., 404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“Stability is
important in a child’s emotional and physical development.”). To the contrary, the evidence
established that Father has deliberately engaged in a course of criminal conduct, both before and
after the children’s birth, that endangers the children’s physical and emotional well-being through
his illegal conduct as well as his periods of incarceration. See Walker, 312 S.W.3d at 617. There
was no evidence that Father remained in contact with the children during his current incarceration
or that he engaged in any drug-treatment or family counseling or other services in an effort to
improve his parenting abilities. Finally, there was evidence that the children are happy and doing
well in their great grandmother’s home and that she intends to adopt them. Based on this record,
we conclude that the evidence is legally and factually sufficient to support the court’s firm belief
or conviction that termination of Father’s parental rights is in the children’s best interest. See TEX.
FAM. CODE ANN. § 161.001(2); Holley, 544 S.W.2d at 371-72.
CONCLUSION
Based on the foregoing reasons, we overrule Father’s issues on appeal and affirm the trial
court’s order terminating Father’s parental rights to J.J.C. and A.C.
Rebeca C. Martinez, Justice
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