in the Interest of M.B.M. and J.J.M., Children ( 2015 )

Opinion issued August 27, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00256-CV
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IN THE INTEREST OF M.B.M. AND J.J.M., CHILDREN
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2014-00491J
MEMORANDUM OPINION
The trial court terminated the parental rights of L.M., the mother, to her two
children, M.B.M. and J.J.M.1 In two issues L.M. argues that the evidence was
legally and factually insufficient to support the termination of her parental rights
1
The trial court also terminated the parental rights of the children’s fathers.
However, only the mother appealed the trial court’s judgment, so neither father is
a party to this appeal.
under Texas Family Code section 161.001(1)(D) and (E) and under Family Code
section 161.001(2).
We affirm.
Background
L.M. is the mother of M.B.M. and J.J.M., who were born on August 21,
2010, and August 19, 2012, respectively. The Texas Department of Family and
Protective Services (“DFPS”) became involved in the children’s lives on
November 30, 2013, based on a report of L.M.’s neglectful supervision and
physical abuse of both children. M.B.M., who was three years old at the time, had
a swollen nose and was bleeding from her nose and mouth, and J.J.M., who was
one year old, had an abrasion to his chin and “redness to [his] right cheek.” The
report also alleged that L.M. needed psychiatric care but refused treatment.
Another report indicated that L.M. had been observed “dragging the children and
being aggressive with them,” which again resulted in physical injuries to both
children. On January 30, 2014, DFPS filed its original petition in this case seeking
termination of L.M.’s parental rights.
At trial, DFPS caseworker Erica Stringer testified that after taking M.B.M.
and J.J.M. into protective care, DFPS learned that L.M. had previous involvement
with DFPS. A court had terminated her parental rights to four older children,
including the termination of her parental rights to two children in August 2010,
2
approximately one week before M.B.M. was born. Those terminations were based
on findings that L.M. endangered two of her older children, failed to comply with
the court-ordered rehabilitation plan, and used controlled substances in a manner
that endangered her children. During the pendency of the current DFPS case, L.M.
also gave birth to her seventh child, who was subsequently placed into DFPS care.
Stringer stated that, regarding DFPS’s case involving M.B.M. and J.J.M.,
L.M. was given a family service plan. Stringer met with L.M. to discuss the
services that DFPS offered to her, and she believed that L.M. understood the
service plan. However, L.M. failed to complete her services. Specifically, she
failed to complete the substance abuse treatment, domestic violence classes, anger
management classes, and individual counseling requirements, and she also failed to
obtain stable housing and employment. Stringer also testified that L.M. was
involved in criminal activities and that she missed “a lot of visits” with her
children over the course of the case because she was incarcerated. Stringer stated
that L.M. had never called to ask how M.B.M. and J.J.M. were doing and had
never sent letters or gifts to the children. Stringer further testified that M.B.M. had
made an outcry of sexual abuse at the hands of her mother’s friend to her
grandmother, and DFPS determined that there was “reason to believe” the
allegation.
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DFPS presented evidence of L.M.’s criminal history. The record indicated
that L.M. had a 2007 conviction for possession of cocaine; a 2009 conviction for
assault; a 2009 conviction for possession of an inhalant; a 2011 conviction for
assault of a family member; a 2013 conviction for criminal mischief; and 2013
conviction for possession of an inhalant. Several of these convictions resulted in
L.M.’s being incarcerated for short periods of time. Also, in December 2013, L.M.
committed the offense of forgery of a government financial instrument. In March
2014, she was placed on community supervision for this offense; however, in
November 2014, the criminal court rendered judgment against L.M. for this
offense and assessed a sentence of two years’ incarceration. Thus, at the time of
trial in the underlying proceeding, L.M. was incarcerated.
DFPS also introduced into evidence three drug tests administered to L.M. on
February 13, 2014, May 9, 2014, and July 17, 2014. She tested positive for
cocaine use in February 2014 and July 2014. L.M. refused to comply with the
court-ordered blood test on May 9, 2014. Stringer testified that she asked L.M. to
go take a drug test “at least 20 times,” but L.M. refused on all but two occasions.
DFPS records showed that L.M. likewise tested positive for opiate use on May 14,
2014.
Regarding M.B.M.’s and J.J.M.’s placement at the time of trial, Stringer
testified that both children were placed with M.B.M.’s paternal grandmother and
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her husband, who had previously adopted two of M.B.M.’s and J.J.M.’s siblings.
At the time of trial, M.B.M was four years old and J.J.M. was two years old. They
were both doing well in the grandparents’ care and had no special needs. Stringer
testified that the grandparents “do a great job with raising the kids” and that the
children were “happy with them.” Stringer stated that M.B.M. was enjoying
school and that both children were “well-bonded” with the grandparents and their
siblings. She also testified that the grandparents had provided care to both children
even before DFPS became involved in the case and that they intended to adopt the
children.
The grandmother testified at trial that she was happy to have custody of the
children and that she wanted to continue to raise them. She stated that the children
called her “mommy,” and she did not believe that they would be happy anywhere
else. The grandmother testified regarding M.B.M.’s outcry of sexual abuse by a
male friend of L.M.’s. M.B.M. testified that the man gave her a bath, got into the
bathtub with her, and touched her “private parts.” The grandmother discovered
that L.M. “would let the guy take [M.B.M.] on the weekends because he would
give [L.M.] money just to take care of [M.B.M.].” The grandmother stated that
M.B.M. was receiving therapy because of that abuse, that the therapy was helping
M.B.M., and that she and her husband were willing to continue the therapy for as
long as M.B.M. needed it. M.B.M. also reported to her grandmother and her
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attorney ad litem that her mother hit her, pulled her hair when she was angry, and
called her “a bitch.”
L.M. was unable to be present at the trial to testify because she was
incarcerated. She had been transferred to a different unit, so her counsel’s bench
warrant could not be executed. Her counsel sought a continuance in order to
procure L.M.’s attendance in court, but the trial court denied this request. No
witnesses testified on L.M.’s behalf, and she presented no evidence.
The trial court found clear and convincing evidence that L.M. violated
Family Code subsections 161.001(1)(D), (E), (M), (N), (O), and (P) and that
termination of her parental rights was in the children’s best interest. Accordingly,
the trial court rendered its final judgment terminating L.M.’s parental rights to
M.B.M. and J.J.M. and naming DFPS as the permanent managing conservator.
This appeal followed.
Sufficiency of the Evidence
L.M. challenges the sufficiency of the evidence supporting the trial court’s
determinations that termination was proper under Family Code subsections
161.001(1)(D) and (E) and that termination of L.M.’s parental rights was in the
children’s best interest.
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A. Standard of Review
In a case to terminate parental rights brought by DFPS under section
161.001, DFPS must establish, by clear and convincing evidence, (1) that the
parent committed one or more of the enumerated acts or omissions justifying
termination and (2) that termination is in the best interest of the child. TEX. FAM.
CODE ANN. § 161.001 (Vernon 2014); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).
“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
(Vernon 2014); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
In conducting a legal-sufficiency review in a parental-rights-termination
case brought by DFPS under Family Code section 161.001, we must look at the
entire record to determine whether the evidence, viewed in the light most favorable
to the finding, is such that a reasonable factfinder could have formed a firm belief
or conviction about the truth of the matter on which DFPS bore the burden of
proof. In re J.O.A., 283 S.W.3d at 344–45 (quoting In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002)). We “must assume that the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so,” and we “should
disregard all evidence that a reasonable factfinder could have disbelieved or found
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to have been incredible.” Id. at 344; Jordan v. Dossey, 325 S.W.3d 700, 712–13
(Tex. App.—Houston [1st Dist.] 2010, pet. denied).
In conducting a factual-sufficiency review, we view all of the evidence,
including disputed or conflicting evidence. In re J .O.A., 283 S.W.3d at 345. We
should consider whether the disputed evidence is such that a reasonable factfinder
could not have resolved that disputed evidence in favor of its finding. In re J.F.C.,
96 S.W.3d at 266. The evidence is factually insufficient only 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” regarding the finding under
review. In re J.O.A., 283 S.W.3d at 345 (quoting In re J.F.C., 96 S.W.3d at 266).
DFPS must establish both elements—that the parent committed one of the
acts or omissions enumerated in section 161.001(1) and that termination is in the
best interest of the child. See TEX. FAM. CODE ANN. § 161.001; In re C.H., 89
S.W.3d at 23. Termination may not be based solely on the trier of fact’s
determination of the best interest of the child. In re A.B., 437 S.W.3d 498, 504
(Tex. 2014) (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987)). However, “[o]nly one predicate finding under section 161.001(1) is
necessary to support a judgment of termination when there is also a finding that
termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex.
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2003); In re A.C., 394 S.W.3d 633, 639 (Tex. App.—Houston [1st Dist.] 2012, no
pet.).
B. Findings Pursuant to Section 161.001(1)
In her first issue, L.M. argues that the evidence was legally and factually
insufficient to establish that she endangered the children pursuant to subsections
161.001(1)(D) and (E). See TEX. FAM. CODE ANN. § 161.001(1)(D) (providing that
court may terminate parent-child relationship if parent has “knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which
endanger the physical or emotional well-being of the child”); id. § 161.001(1)(E)
(providing that court may terminate parent-child relationship if parent 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”).
L.M. does not challenge the sufficiency of the evidence supporting the trial
court’s findings under subsections 161.001(1)(M), (N), (O), or (P). See id.
§ 161.001(1)(M) (permitting termination of parental rights when parent has had her
parent-child relationship terminated with respect to another child based on finding
of endangerment); id. § 161.001(1)(N) (permitting termination when parent has
constructively abandoned child); id. § 161.001(1)(O) (permitting termination when
parent has failed to comply with provisions of court order that specifically
established actions necessary for parent to obtain return of child); id. §
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161.001(1)(P) (permitting termination of parental rights when parent has used
controlled substance in manner that endangered child’s health or safety). “Only
one predicate finding under section 161.001(1) is necessary to support a judgment
of termination when there is also a finding that termination is in the child’s best
interest.” See In re A.V., 113 S.W.3d at 362. Because L.M. does not challenge the
sufficiency of the evidence supporting the trial court’s findings pursuant to
subsections 161.001(1)(M), (N), (O), or (P), and the trial court also found that
termination was in the children’s best interest, as discussed below, we need not
address the sufficiency of the evidence to support its findings pursuant to
subsections 161.001(1)(D) and (E). See id.
We overrule L.M.’s first issue.
C. Findings on Children’s Best Interest
In her second issue, L.M. argues that the evidence was insufficient to
support the trial court’s conclusion that termination of her parental rights was in
the children’s best interest.
There is a strong presumption that the best interest of the children will be
served by preserving the parent-child relationship. See In re R.R., 209 S.W.3d 112,
116 (Tex. 2006) (per curiam). Prompt and 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) (Vernon 2014). The Family Code and the Texas
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Supreme Court have both set out numerous factors to be considered in determining
a child’s best interest, including, among others: the child’s age and physical and
mental vulnerabilities; the child’s desires; the magnitude, frequency, and
circumstances of harm to the child, including current and future danger to the
child; whether there is a history of substance abuse by the child’s family; 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; whether the child’s family demonstrates adequate parenting
skills, including providing the child and other children under the family’s care with
minimally adequate health and nutritional care, guidance and supervision, and a
safe physical home environment; the stability of the home or proposed placement;
and the parent’s acts or omissions indicating an improper parent-child relationship
and any excuses for the acts or omissions. See id. § 263.307(b); In re R.R., 209
S.W.3d at 116; Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
This is not an exhaustive list, and a court need not have evidence on every
element listed in order to make a valid finding as to the child’s best interest. In re
C.H., 89 S.W.3d at 27. The evidence supporting the statutory grounds for
termination may also be used to support a finding that the best interest of the child
warrants termination of the parent-child relationship. Id. at 28; In re N.R.T., 338
S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). Furthermore, the best
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interest analysis may consider circumstantial evidence, subjective factors, and the
totality of the evidence as well as the direct evidence. In re N.R.T., 338 S.W.3d at
677.
Here, multiple factors support the trial court’s finding that termination was
in the children’s best interest. M.B.M. was four and J.J.M. was two at the time of
trial, and they had lived with their grandmother for a significant portion of their
young lives. Thus, the children’s ages and physical and mental vulnerabilities
weigh in favor of terminating L.M.’s parental rights. See TEX. FAM. CODE ANN.
§ 263.307(b)(1).
Furthermore, L.M. tested positive for illegal drug use on multiple occasions,
even after her children were removed from her care, and she failed to complete her
family service plan, including the requirements that she complete substance abuse
treatment, domestic violence classes, anger management classes, and individual
counseling. She likewise failed to obtain stable housing or employment. See In re
E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (holding that findings under section
161.001(l)(O) that parent failed to complete court-ordered services can support
best interest finding); In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005,
no pet.) (“A parent’s engaging in illegal drug activity after agreeing not to do so in
a service plan for reunification with her children is sufficient to establish clear and
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convincing proof of voluntary, deliberate, and conscious conduct that endangered
the well-being of her children.”).
There was evidence that L.M. engaged in conduct that endangered M.B.M.
and J.J.M. M.B.M. testified that her mother hit her, pulled her hair when she was
angry, and called her “a bitch.” L.M. also permitted a male friend to take M.B.M.
away for the weekend in exchange for money, resulting in M.B.M.’s becoming a
victim of sexual abuse. L.M. tested positive for drug use on multiple occasions
after the children were removed from her care, and she did not comply with at least
one court-ordered drug test. L.M. also had an extensive criminal history, including
offenses that she committed after being ordered by the court to refrain from
engaging in criminal activity. She was incarcerated at the time of trial, and she had
missed numerous opportunities to visit her children. She likewise had failed to
send the children any letters or gifts. Thus, the record contains evidence regarding
circumstances that resulted in harm to the children and a lack of physical safety for
the children. It also revealed the extent of L.M.’s history of drug abuse, her
unwillingness to complete court-ordered services, and her lack of parenting skills.
See TEX. FAM. CODE ANN. § 263.307(b) (providing that, in determining best
interest of child, courts should consider circumstances of harm, history of
substance abuse, willingness to complete services, demonstration of parenting
skills, and safety of physical home environment); Holley, 544 S.W.2d at 371–72
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(providing that, in determining best interest of child, courts should examine
stability of home and proposed placement and parent’s acts or omissions indicating
improper relationship).
Regarding the children’s placement at the time of trial, Stringer testified that
the grandmother had been caring for the children since they were removed from
L.M. and wanted to adopt them. The children were bonded to their grandparents
and to their siblings who had previously been adopted by the grandparents. The
grandmother testified that she had provided care for the children even before DFPS
became involved in the children’s lives. The children loved her and called her
“mommy,” and she did not believe that the children would be happy anywhere
else. The grandmother and her husband were good caregivers and were committed
to providing the care that M.B.M. and J.J.M. would need. Thus, the stability of the
proposed placement also weighs in favor of terminating L.M.’s parental rights. See
Holley, 544 S.W.2d at 371–72 (providing courts should consider stability of
proposed placement in determining children’s best interest).
We conclude that the evidence was legally sufficient to support the trial
court’s finding that termination of L.M.’s parental rights to M.B.M. and J.J.M. was
in the children’s best interest. See In re J.O.A., 283 S.W.3d at 344–45.
L.M. argues that the evidence was incomplete because she was not able to be
present to testify at trial due to the fact that the Texas Department of Criminal
14
Justice had transferred her to a different unit, thus precluding the execution of her
bench warrant. However, she presents no argument or evidence demonstrating the
necessity of her presence at trial. She likewise does not challenge the trial court’s
denial of the continuance sought by her trial counsel. L.M.’s counsel argued at
trial that her second drug test showed a lower amount of drugs in her system, and,
thus, there was no evidence that she had continued using drugs after being ordered
by the court to stop, but L.M. did not present any evidence or make any other
arguments at trial.
Viewing all of the evidence, as we must, we conclude that any disputed
evidence was not so significant that a factfinder could not reasonably have formed
a firm belief or conviction that termination of L.M.’s parental-rights was in the
children’s best interest. See In re J.O.A., 283 S.W.3d at 345. Thus, we conclude
that the evidence was both legally and factually sufficient to support the trial
court’s finding that termination was in the children’s best interest. See id. at 344–
45.
We overrule L.M.’s second issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.
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