in the Interest of D.M.M., Child ( 2017 )

Affirmed and Memorandum Opinion filed January 5, 2017.
In The
Fourteenth Court of Appeals
NO. 14-16-00664-CV
IN THE INTEREST OF D.M.M., CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2015-06964J
MEMORANDUM OPINION
Appellants M.V.V. (“Mother”) and H.R.M. (“Father”) appeal the trial
court’s final decree terminating their parental rights and appointing the Department
of Family and Protective Services (the “Department”) as sole managing
conservator of D.M.M. (“the Child”). In two issues both parents challenge the legal
and factual sufficiency of the evidence to support the trial court’s finding that
termination is in the best interest of the Child. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Proceedings
On the day of the Child’s birth, November 26, 2015, the Department
received a referral regarding risk of neglectful supervision by Mother and Father.
Both parents had a history of illegal drug use and three children in foster care.
Mother allegedly used Father’s morphine prescription while pregnant. Father was
believed to be a gang member, and was on probation for aggravated assault with a
deadly weapon. Mother tested positive for opiates in the three months prior to the
Child’s birth, including a positive test three days before birth.
The Department sought to be named temporary managing conservator
because (1) Mother tested positive for high levels of controlled substances; and (2)
both parents have a history of drug use. In addition, both parents had three children
in the Department’s custody at the time of the Child’s birth. Neither parent
complied with required drug testing during the pendency of the previous three
children’s termination proceedings.
Four days after the Child’s birth, a Department investigator made face-to-
face contact with Mother. Mother denied using morphine during pregnancy,
admitted using synthetic marijuana, but denied currently using any drugs. Mother
tested positive for morphine three times between September and November, and
positive for “K2/Spice” once in March. Mother had a prior misdemeanor
conviction for theft of property.
Another investigator made face-to-face contact with Father on the same day.
Father denied being in a gang, and said Mother did not use his prescription
morphine. Father could not submit to some of the court-ordered drug tests because
he had a crisis with his medical condition involving sickle cell anemia. Father
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admitted that he currently is serving ten years’ probation for assault with a deadly
weapon. Father submitted to drug tests in March, July, and October. Most revealed
positive results for prescribed medications. The Department described these results
as negative because Father had a prescription. In July, Father had a positive hair
follicle test for cocaine. Father had prior convictions for assault-bodily injury,
possession of marijuana, indecent exposure, and theft of property.
The removal affidavit lists the parents’ history with the Department. Three
other children were removed from the parents’ care due to serious neglectful
supervision. The referrals for those children stated that the youngest children, ages
two and three, lost five to ten pounds in one month but did not appear to be
malnourished. After the third child was born, the Department noted that both
parents were using drugs in the presence of the children. Mother had passed out for
an undetermined amount of time due to being under the influence of drugs. In
April 2015, the Department was granted temporary managing conservatorship of
the three other children.
The Child was placed with the paternal aunt and uncle in January 2016,
which is where her siblings were placed. Family service plans were created and
approved by the trial court. The trial court found that both parents reviewed the
service plans, understood them, and were advised that unless they were willing and
able to provide the child with a safe environment within the reasonable period of
time specified in the service plan, their parental and custodial rights were subject to
restriction or termination.
The Department filed an amended petition for termination of the parents’
rights in which it alleged Mother’s rights should be terminated under Texas Family
Code section 161.001(b)(1)(D), (E) (endangerment); (M) (relationship terminated
with respect to another child based on finding of endangerment); (N) (constructive
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abandonment); (O) (failure to comply with service plan); and (P) (use of controlled
substance in a manner that endangered health or safety of the child). The amended
petition alleged Father’s rights should be terminated under section
161.001(b)(1)(D), (E), (M), (N), and (P).
B. Trial Testimony
Father moved for a continuance before the introduction of evidence on
grounds that ill health prevented him from performing services under his plan. The
trial court reviewed Father’s health records, which reflected that Father could
“exercise and do whatever he wants as long as he takes his medication.” The trial
court denied the motion for continuance. The trial court admitted into evidence
without objection the citations for both parents, a DNA report showing paternity,
and the prior decree of termination on endangerment grounds.
Jessica Leal, the Department caseworker, testified that the Child came into
the Department’s custody because the parents have a history of illegal drug use and
three prior “CPS cases.” The parents’ rights were terminated to three older children
on grounds of endangerment and failure to comply with the family service plan.
Both parents continued to test positive for illegal drugs during the pendency of the
prior termination suit. The parents did not complete any services while the current
termination case was pending.
At the time of trial the Child was placed with her paternal aunt and uncle
where she lived with her three older siblings. According to Leal, the aunt and uncle
meet all of the Child’s physical and emotional needs, and want to adopt the Child
and her three siblings. The Child has bonded with the aunt and uncle. The parents
have not demonstrated that they can provide a safe and stable environment for the
Child.
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Leal testified that Father told her he wanted to work the service plan. Leal
provided Father with referrals to help with the tasks on the plan. Leal reviewed
each service with Father and explained where to go to complete the services.
However, Father did not perform the services under the plan.
Peggy Simon, a Child Advocates volunteer, testified that she wished the
parents had three more months to try to work their services. She further testified
that termination and continued placement with the aunt and uncle were in the best
interest of the Child. Simon agreed that the Child bonded with the aunt and uncle
and was doing well in her current placement.
Father testified that he has been diagnosed with sickle cell anemia, which
caused him to be hospitalized seven times in the past year. Father admitted the
hospitalizations had not prevented him from working his services. Father asked the
trial court for more time to work his services, and to stay off drugs. Father receives
monthly income of $625 from Social Security, which he admitted is not enough to
support the Child, but testified he would find employment if his parental rights
were not terminated.
Mother also asked for more time to complete her services. Mother testified
that if given more time she would work her services and stay off drugs. She
acknowledged that her rights to the three older children were terminated, but said
she wanted to raise her daughter. Mother testified that a leukemia diagnosis six
months before trial prevented her from working her family service plan. Mother
testified that she “stepped away from CPS for a little bit” due to her illness. On
cross-examination, Mother admitted to testing positive for opiates three times
while the termination was pending. No further evidence was developed about
Mother’s illness and its effect on this termination case.
At the conclusion of the bench trial, the trial court found clear and
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convincing evidence that the parents’ parental rights should be terminated under
Family Code section 161.001(b)(1)(M).
II. ANALYSIS
In a single issue, each parent challenges the legal and factual sufficiency of
the evidence to support the trial court’s finding that termination is in the best
interest of the Child.
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). Although parental rights are of constitutional magnitude, they are not
absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.”).
Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to the clear and convincing evidence standard. 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; In re
J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened
standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th
Dist.] 2008, no pet.).
In reviewing legal sufficiency of the evidence in a parental termination case,
we must consider all evidence in the light most favorable to the finding to
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determine whether a reasonable fact finder could have formed a firm belief or
conviction that its finding was true. In re J.O.A., 283 S.W.3d at 336. We assume
that the fact finder resolved disputed facts in favor of its finding if a reasonable fact
finder could do so, and we disregard all evidence that a reasonable fact finder
could have disbelieved. Id.; In re G.M.G., 444 S.W.3d 46, 52 (Tex. App.—
Houston [14th Dist.] 2014, no pet.).
In reviewing the factual sufficiency of the evidence, we consider and weigh
all of the evidence, including disputed or conflicting evidence. In re 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.” Id. 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).
A. Predicate Termination Grounds
Termination under section 161.001(b)(1)(M) requires a finding that the
parent “had his or her parent-child relationship terminated with respect to another
child based on a finding that the parent’s conduct was in violation of Paragraph (D)
or (E) or substantially equivalent provisions of the law of another state.” Tex. Fam.
Code Ann. § 161.001(b)(1)(M).
On April 28, 2016, the parents’ parental rights were terminated with respect
to three older children based on section 161.001(b)(1)(E) of the Texas Family
Code. A copy of the 2016 termination decree was admitted into evidence and is
included in the appellate record. The parents concede the subsection M finding is
supported on appeal. Accordingly, the first requirement for termination—a
predicate statutory ground—is satisfied. See Tex. Fam. Code Ann. § 161.001(b)(1).
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B. Best Interest of the Child
Both parents challenge the legal and factual sufficiency of the evidence to
support the trial court’s finding that termination is in the Child’s best interest.
The factors the trier of fact may use to determine the best interest of the
child include: (1) the desires of the child; (2) the present and future physical and
emotional needs of the child; (3) the present and future emotional and physical
danger to the child; (4) the parental abilities of the persons seeking custody; (5) the
programs available to assist those persons seeking custody in promoting the best
interest of the child; (6) the plans for the child by the individuals or agency seeking
custody; (7) the stability of the home or proposed placement; (8) acts or omissions
of the parent that may indicate the existing parent-child relationship is not
appropriate; and (9) any excuse for the parents’ acts or omissions. Holley v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re U.P., 105 S.W.3d 222, 230
(Tex. App.—Houston [14th Dist.] 2003, pet. denied); see also Tex. Fam. Code
Ann. § 263.307(b) (listing factors to consider in evaluating parents’ willingness
and ability to provide the child with a safe environment).
A strong presumption exists that the best interest of the child is served by
keeping the child with his natural parent, and the burden is on the Department to
rebut that presumption. In re U.P., 105 S.W.3d at 230. Prompt and permanent
placement of the child in a safe environment also is presumed to be in the child’s
best interest. Tex. Fam. Code Ann. § 263.307(a). Mother contends that the
presumption in her favor is not rebutted because she cared for the Child, and the
Child Advocates’ volunteer wanted the parents to have more time before their
rights were terminated. Father contends that the presumption in his favor is not
rebutted because there was no evidence that he was a danger to the Child.
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1. Present and Future Physical and Emotional Danger to the
Child
Evidence supporting termination under the grounds listed in section
161.001(b)(1) also can be considered in support of a finding that termination is in
the best interest of the child. See In re C.H., 89 S.W.3d at 27 (holding the same
evidence may be probative of both section 161.001(b)(1) grounds and best
interest).
A reviewing court may examine a parent’s history with other children in
considering the risks or threats of a parent’s environment. In re E.C.R., 402 S.W.3d
239, 248 (Tex. 2013). “Part of [the] calculus includes the harm suffered or the
danger faced by other children under the parent’s care.” Id. Courts consider
whether a parent demonstrates adequate parenting skills, including providing the
child with “protection from repeated exposure to violence even though the violence
may not be directed at the child.” Tex. Fam. Code Ann. § 263.307(b)(12)(E). The
unchallenged predicate finding that rights to three other children were terminated
on endangerment grounds is binding. See In re E.A.F., 424 S.W.3d 742, 750 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied).
At seven months old, the Child was very young and dependent on her
caregivers to meet her needs. Father asserts that he did not pose a danger to the
Child; however, the record reflects that Mother and Father lacked the ability to
meet the Child’s needs, and that they represented a danger to the Child if the Child
were returned to their care. Both parents had a history of using illegal drugs, and
their three older children were removed from their care based on a finding that the
parents engaged in conduct endangering to the children. See generally In re
J.W.O., 02-10-00065-CV, 2010 WL 4924975, at *2 (Tex. App.—Fort Worth Dec.
2, 2010, no pet.) (mem. op.) (finding evidence of a prior termination in support of
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subsection M relevant to the fact-finder’s best interest determination.).
The Texas Supreme Court has recognized that parents’ use of narcotics and
its effect on their ability to parent may qualify as an endangering course of
conduct. In re J.O.A., 283 S.W.3d at 345; see also Edwards v. Tex. Dep’t of
Protective Servs., 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ)
(stating a parent’s drug use is a condition that can endanger a child’s physical or
emotional well-being and indicate instability in home environment). A parent’s
drug use also supports a finding that termination of parental rights is in the best
interest of the child. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth
2007, no pet.); see also In re M.S.L., No. 14–14–00382–CV, 2014 WL 5148157, at
*6 (Tex. App.—Houston [14th Dist.] Oct. 14, 2014, no. pet.) (mem. op.). The fact
finder can give “great weight” to the “significant factor” of drug-related conduct.
In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.); see also In
Interest of M.L.G.J., 14-14-00800-CV, 2015 WL 1402652, at *4 (Tex. App.—
Houston [14th Dist.] Mar. 24, 2015, no pet.) (mem. op.) (considering a parent’s
drug history in affirming a trial court’s decision that termination was in the best
interest of the child).
In addition to Mother’s admitted use of opiates and Father’s admitted use of
cocaine, Leal testified that both parents failed to submit to required drug testing.
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, and that termination is in the best interest of the child. 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.). The parents’ behavior evinces a
course of conduct that a fact finder reasonably could conclude endangers the
Child’s well-being.
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2. Stability and Compliance with Services
In determining the best interest of the child in proceedings for termination of
parental rights, the trial court may properly consider that the parent did not comply
with the court-ordered service plan for reunification with the child. See In re
E.C.R., 402 S.W.3d at 249. The record reflects that both parents were provided
with family service plans in this case and in the previous termination case with
their three older children. Department caseworkers explained the plans to the
parents and explained that their participation in services was necessary for
reunification with their children.
Both parents acknowledged that Leal provided family service plans. Mother
testified that Leal reviewed the plan with her and that one of the requirements of
her plan was to abstain from using illegal drugs. The record reflects, however, that
Mother did not complete the services in her plan and did not remain drug-free
knowing it was necessary to obtain the return of her children. Father testified that
Leal reviewed his service plan with him and made referrals necessary for Father to
participate in those services, including parenting classes and a psychosocial
evaluation, but Father failed to work his services. The parents’ failure to comply
with court-ordered tasks and drug use during the termination proceedings supports
the trial court’s finding that termination is in the best interest of the Child.
3. Child’s Desires and Proposed Placement
The Child was very young at the time of trial and there is no evidence of her
desires. When a child is too young to express her desires, the fact finder may
consider that the child has bonded with the foster family, is well cared for by them,
and has spent minimal time with a parent. In re J.D., 436 S.W.3d 105, 118 (Tex.
App.—Houston [14th Dist.] 2014, no pet.).
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Because the Child was removed at birth, Mother spent minimal time with
her. The stability of the proposed home environment is an important consideration
in determining whether termination of parental rights is in the Child’s best interest.
See id. at 119–20. A child’s need for permanence through the establishment of a
“stable, permanent home” has been recognized as the paramount consideration in a
best-interest determination. Id. (“Stability and permanence are paramount in the
upbringing of children.”). Therefore, evidence about the present and future
placement of the Child is relevant to the fact finder’s best-interest determination.
See In re C.H., 89 S.W.3d at 28.
Leal testified that the parents have not demonstrated the ability to provide a
safe and stable environment for the Child. She further testified that the Child is
currently living with her paternal aunt and uncle and her three older siblings. The
aunt and uncle want to adopt all four children. Leal concluded that the Child has
bonded with the aunt and uncle, and it is in her best interest to remain with her
current caregivers and her siblings.
4. Parenting Abilities and Family Support
The evidence showed that neither parent demonstrated the ability to safely
parent the Child. The Child’s three older siblings were removed from the home on
endangerment grounds. Other than Father’s sister and husband, the children’s
caregivers, there is no evidence of family support to help with parenting.
Moreover, both parents continued to test positive for illegal drugs despite service
plans requiring them to remain drug free in order for their Child to be returned to
them.
5. Excuses for Acts or Omissions of Parents
Lastly, Mother argues her illness hindered her ability to work her services.
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Mother testified that she had been diagnosed with leukemia six months before trial.
After the diagnosis, she “stepped away from CPS for a little bit.” Mother did not
present evidence that her use of opiates was connected with her diagnosis, nor did
she explain how the diagnosis prevented her from contacting the Department. The
trial court as fact finder was in the best position to assess the credibility of
Mother’s excuses. See generally In re G.M.G., 444 S.W.3d 46, 52 (Tex. App.—
Houston [14th Dist.] 2014, no pet.).
CONCLUSION
The record contains evidence supporting the best interest finding based on
the parents’ drug use, failure to comply with court-ordered services, and previous
termination on endangerment grounds. Based on the evidence presented, the trial
court could have reasonably formed a firm belief or conviction that terminating
both parents’ parental rights was in the Child’s best interest so that she could
promptly achieve permanency through adoption. See In re T.G.R.-M., 404 S.W.3d
7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.); In re M.G.D., 108 S.W.3d
508, 513–14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
Applying the applicable Holley factors to the evidence, we conclude that
there was legally and factually sufficient evidence to reasonably establish a firm
belief or conviction that termination of both parents’ parental rights is in the
Child’s best interest. See Tex. Fam. Code Ann. § 106.001(2). We overrule
Mother’s and Father’s sole issues on appeal.
We affirm the decree terminating appellants’ rights.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Busby, and Wise.
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