in the Interest of J.J.D. and A.M.C., Children ( 2012 )

NUMBER 13-11-00388-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF J.J.D. AND A.M.C., CHILDREN
On appeal from the 36th District Court
of Bee County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
This appeal involves the involuntary termination of the parent-child relationships
between a mother and her two children, and a father and his child. See TEX. FAM. CODE
ANN. § 161.001 (West 2008). Appellants1 (hereinafter “Mother” and “Father”) appeal a
1
In order to protect the minor children’s identities, we will use aliases to identify the parties and the
children involved in this appeal. See TEX. R. APP. P. 9.8.
jury verdict which (1) terminated Mother’s parent-child relationship with Child One and
Child Two; and (2) terminated Father’s parent-child relationship with Child Two. By five
issues, which we consolidate into one, 2 Mother challenges the factual and legal
sufficiency of the evidence to sustain the jury’s verdict. By four issues, which we
consolidate into one,3 Father challenges the factual and legal sufficiency of the evidence
to sustain the jury’s verdict. We affirm the trial court’s judgment because the evidence
is factually and legally sufficient to support a termination finding against both Mother and
Father.
I. BACKGROUND4
On January 7, 2010, an investigator with the Texas Department of Family and
Protective Services (DFPS) received a tip concerning appellants’ alleged drug use, as
well as the condition of a home where Child One and Child Two resided. In her initial
visit at the home, the DFPS investigator did not uncover anything that appeared to be a
danger to the children. Nevertheless, DFPS requested hair-follicle testing of both
Mother and Father to determine whether they were actively using drugs or had used in
the recent past. The tests yielded positive results for cocaine-use for both parents.
2
See TEX. R. APP. P. 47.1.
3
See id.
4
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for
it. See id. 47.4.
2
DFPS then placed the children into foster homes, and they ultimately settled into the
Foster Mother’s home.5
An adversarial hearing was held on February 2, 2010. At the hearing, the trial
court ordered that DFPS become the children’s temporary managing conservator and
ordered that Mother and Father retain temporary possession of the children. The trial
court further ordered that Mother and Father comply with the DFPS Service Plan for the
children during the pendency of the suit. See TEX. FAM. CODE ANN. §§ 263.101–.102
(West 2008). One task articulated in the family service plan stated that Mother and
Father “shall submit to a drug assessment and random drug screening at the discretion”
of DFPS. Mother and Father were allowed to visit with the children during this period of
time. In the months following the temporary orders, Mother was offered seven drug
tests: three returned positive for cocaine, two returned negative, and two were not
taken; and Father was offered nine drug tests: three returned positive for cocaine; four
were negative; and two were not taken. Following Mother and Father’s positive drug
tests in March 2011, DFPS initiated termination proceedings.
The termination cases were consolidated and tried before a Bee County jury.
After the two-day trial, the jury made affirmative findings to support termination of
Mother’s parental rights of Child One and Child Two and affirmative findings to support
termination of Father’s parental rights of Child Two. The trial court then ordered that
5
Child One and Child Two’s foster parents are intervenors in the underlying case.
3
DFPS be appointed as permanent managing conservator of the children. Mother and
Father filed separate appeals.
II. APPLICABLE LAW AND STANDARD OF REVIEW
A court may order the termination of a parent-child relationship if shown by clear
and convincing evidence that a parent’s conduct has met at least one of the statutory
factors listed in the family code, coupled with an additional finding by clear and
convincing evidence that termination is in the child’s best interest. See TEX. FAM. CODE
ANN. § 161.001; In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002) (noting the two-prong test
in deciding parental termination, and that one act or omission of conduct satisfies the
first-prong); In re E.M.N., 221 S.W.3d 815, 820–21 (Tex. App.—Fort Worth 2007, no
pet.).
We review challenges to the factual sufficiency of the evidence in a termination
proceeding by giving “due deference to a jury’s factfindings,” and we do not “supplant the
jury’s judgment” with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per
curiam). In our review, we should “inquire ‘whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction about the truth of the [ ]
allegations’” from the entire record. Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)). Furthermore, when conducting a legal sufficiency analysis in a parental
termination case:
[A] court should look at all the 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. To give appropriate
deference to the factfinder's conclusions and the role of a court conducting
a legal sufficiency review, looking at the evidence in the light most
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favorable to the judgment means that a reviewing court must assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. A corollary to this requirement is that a court should
disregard all evidence that a reasonable factfinder could have disbelieved
or found to have been incredible. This does not mean that a court must
disregard all evidence that does not support the finding. Disregarding
undisputed facts that do not support the finding could skew the analysis of
whether there is clear and convincing evidence.
In re J.F.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C.,
96 S.W.3d at 266)).
III. DISCUSSION
A. Mother’s Sufficiency Challenge
In Mother’s sole issue on appeal, she contends that the evidence presented at
trial was factually and legally insufficient to support a finding of termination.
Mother first argues that the testimony of DFPS witnesses should be given little
weight because DFPS undermined the credibility of its witnesses by intentionally placing
the children with foster parents whose stated goal was adoption in contrast to the
averred goal of reunification with Mother as stated in the family service plan. We
disagree. Witness credibility issues ‘“that depend on appearance and demeanor
cannot be weighed by the appellate court’” because the witnesses are not present; “[a]nd
even when credibility issues are reflected in the written transcript, the appellate court
must defer to the jury's determinations, at least so long as those determinations are not
themselves unreasonable.” In re J.P.B., 180 S.W.3d at 573. We decline to adopt
Mother’s argument because to do so would require us to weigh evidence and resolve
issues of credibility which would then invade the province of the jury. See Sw. Bell Tel.
5
Co. v. Garza, 164 S.W. 607, 625 (Tex. 2004). We must assume that the jury resolved
purported evidentiary conflicts like this one in favor of its verdict, so long as it is
reasonable. Id. Here, it was reasonable for a jury to weigh the purported evidentiary
conflict and credibility issues in favor of termination and against Mother.
Next, she argues that DFPS failed to establish by clear and convincing evidence
that she violated any of the first-prong statutory grounds of conduct required for
termination. The jury made affirmative findings that she:
(1) knowingly placed or allowed the children to remain in conditions or
surroundings which endangered the children’s physical or emotional
well-being, TEX. FAM. CODE ANN. § 161.001(1)(D);
(2) engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangered the physical or emotional
well-being of the children, id. § 161.001(1)(E);
(3) failed to comply with the provisions of a court order that specifically
established the actions necessary for her to obtain the return of her
children who had been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for
not less than nine months as a result of the children's removal under
Chapter 262 for the abuse or neglect, id. § 161.001(1)(O); and
(4) termination was in the children’s best interest.
The law allows DFPS to meet the first-prong of child termination proceedings if an
affirmative finding is made on at least one statutory act or omission specified in section
161.001(1) of the family code. See In re J.F.C., 96 S.W.3d at 261; In re D.S.P., 210
S.W.3d 776, 779 (Tex. App.—Corpus Christi 2006, no pet.). We will first examine
whether the evidence in this case is legally and factually sufficient to support an
affirmative finding under section 161.001(1)(O).
6
Here, the trial court ordered a “service plan” for Mother, which included among
other things: (1) submitting to drug assessment and random drug screenings at
DFPS’s discretion; and (2) attending individual substance abuse therapy paid for by
DFPS. Mother argues that she was not given clear instructions to follow, and as a
result of DFPS’s actions, inactions, misdirection, and malfeasance with regard to
implementation of the service plan, she was unable to comply with the plan. The record
reveals that on at least five occasions, Mother was non-compliant with her drug testing
requirements pursuant to the February 2010 service plan.6 DFPS caseworker Sara
Bridge testified that the number one priority in the service plan was that the Mother
remain drug free. In addition to the testing, Bridge testified that DFPS submitted
paperwork for Mother to attend substance abuse counseling and substance abuse
assessment at a facility in Edinburg, Texas, since she and Father had moved to the area.
Testimony was elicited that Mother did not attend assessment or treatment at the facility
despite DFPS’s efforts to get her involved. The jury also heard evidence that Mother
completed a mandatory parenting class in January 2011.
Finally, Bridge testified that typical termination cases must end by statute in one
year. See TEX. FAM. CODE ANN. § 263.401 (West 2008). However, Bridge testified that
this case was extended, see id. § 263.401(b), because Mother’s and Father’s progress
was not significant enough to approach reunification with their children, and DFPS
therefore gave them extra time to comply with the service plan. Despite the extra time,
6
According to DFPS caseworker Sara Bridge, Mother tested positive for cocaine on March 11,
2010, August 27, 2010, and March 21, 2011. On two other occasions—January 31, 2011 and March 16,
2011—DFPS requested drug testing, but Mother did not comply with the request. Mother tested negative
on December 10, 2010 and January 31, 2011.
7
Mother did not comply with the court-ordered service plan.
The record shows that Mother continued to use cocaine during the court-ordered
service plan and failed to comply with the tasks specified in the plan. Accordingly,
based on our review of the record and giving appropriate deference to the jury’s
factfindings, we conclude that the evidence is legally and factually sufficient to support a
reasonable trier of fact’s firm belief or conviction that Mother failed to comply with her
court-ordered service plan. See TEX. FAM. CODE ANN. § 161.001(1)(O); see also In re
H.R.M., 209 S.W.3d at 108; In re J.F.B., 180 S.W.3d at 573.7
Having concluded that sufficient evidence satisfied the first-prong of a termination
proceeding, we now turn to whether the jury’s finding that termination of Mother’s
parental rights was in the children’s best interest and was supported by sufficient
evidence. See TEX. FAM. CODE ANN. § 161.001(2). Mother argues that she is better
equipped to care for the children and is “ready to comply” with whatever it takes to
reunite with her children. She also contends that DFPS desires are to place Child One
and Child Two with an economically advantaged family over Mother and Father’s
lower-economic household. We disagree.
In Holley v. Adams, the supreme court provided a non-exhaustive list of factors
that courts consider in analyzing the best interests of a child, which include:
7
Because we conclude that sufficient evidence supports the jury’s finding that Mother failed to
comply with her service plan, see TEX. FAM. CODE ANN. 161.001(1)(O), we need not address her arguments
as to the remaining findings supporting termination. See In re J.F.C., 96 S.W.3d at 261 (requiring only one
statutory ground under section 161.001 to meet the first-prong of a termination proceeding); In re D.S.P.,
210 S.W.3d at 779; see also TEX. R. APP. P. 47.1.
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(1) desires of the child;
(2) emotional and physical needs of the child now and in the future;
(3) emotional and physical danger to the child now and in the future;
(4) parental abilities of individuals seeking custody;
(5) programs available to assist individuals to promote the best interest of the
child;
(6) plans for the child by these individuals 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 a proper one; and
(9) any excuse for the acts or omissions of the parent.
544 S.W.2d 367, 372 (Tex. 1976); see W.B. v. Tex. Dep’t. of Protective and Regulatory
Serv., 82 S.W.3d 739, 742 (Tex. App.—Corpus Christi 2002, no pet.).
There are a number of considerations which support the jury’s firm belief or
conviction that termination was in the children’s best interest. While the children are too
young to express their placement desire, testimony was elicited from Foster Mother who
indicated that the children are doing very well in her and her husband’s care and that
they have made “leaps and bounds” from where they were at the initial placement.
Foster Mother also indicated that both children experience speech delay, but are
currently improving due to the speech therapy they have received. Foster Mother also
explained that the children experienced behavioral issues after visiting with Mother and
Father, including breaking and destroying things. She also recalled that during a
scheduled visitation, Child One did not run to either Mother or Father. Foster Mother
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also indicated that she engaged the assistance of Arrow Ministries to help with the
foster-to-adoption process, which included a parenting class.
This evidence supports a reasonable factfinder’s firm belief or conviction that the
foster family’s parental abilities, programs utilized by the foster family to assist the
children, and stability of the foster family’s home over Mother’s home are in the children’s
best interest. Additionally, Mother’s admitted cocaine use and failure to comply with the
court-ordered service plan is probative of the issue of the children’s best interest as well.
See In re C.H., 89 S.W.3d at 28. At trial, Mother’s excuse for her failure to comply was
because she has a drug problem and was unable to get treatment. The record shows
that Mother was given ample opportunity to address her drug issues through
court-ordered services, but she did not comply with the plan or its main goal of
maintaining a drug-free life. After reviewing the record in the light most favorable to the
finding, we conclude that factually and legally sufficient evidence supports the jury’s firm
belief or conviction that terminating Mother’s parental rights to Child One and Child Two
were in the children’s best interest.
Mother’s sole issue is overruled.
B. Father’s Sufficiency Challenge
In Father’s sole issue on appeal, he contends that the evidence is factually and
legally insufficient to support the jury’s finding of termination. Like Mother, Father
argues that DFPS failed to establish by clear and convincing evidence any of the
statutory acts or omissions to support termination of father’s parental rights and that
termination was in Child Two’s best interest.
10
Father contends that he was unable to comply with the court-ordered service
plan—despite his desire to cooperate—because DFPS handled his case poorly and in
an unprofessional manner which frustrated compliance. While DFPS caseworker
Bridge conceded that Father’s file was not handled in a model way—e.g., the file was in
disarray and certain opportunities were denied to Father and Mother due to the
mishandling of the file—evidence of Father’s cocaine use was also presented. Like
Mother’s service plan, Father’s plan provided that he: (1) submit to drug assessment and
random drug screenings at DFPS’s discretion; and (2) attend individual substance abuse
therapy paid for by DFPS. The record reveals that on five occasions, Father was
non-compliant with the drug screening requirement.8 Like Mother, Father completed a
parenting class, but only sporadically participated in individual and family counseling
classes, and started, but did not complete, individual counseling services in Edinburg,
Texas. Again, the number one priority of the service plan was to ensure that Father
was drug free.
Based on the foregoing evidence and our review of the record and after giving
appropriate deference to the jury’s factfindings, we conclude that the evidence is legally
and factually sufficient to support a reasonable trier of fact’s firm belief or conviction that
Father failed to comply with his court-ordered service plan. See In re H.R.M., 209
S.W.3d at 108; In re J.F.B., 180 S.W.3d at 573; TEX. FAM. CODE ANN. § 161.001(1)(O).9
8
According to Bridge, Father tested positive for cocaine on August 27, 2010, September 16, 2010,
and March 21, 2011. On two other occasions—January 13, 2011 and March 16, 2011—Father did not
comply with the request. He tested negative on June 30, 2010, September 19, 2010, September 22, 2010,
and December 10, 2010.
9
Because we conclude that sufficient evidence supports the jury’s finding that Father failed to
11
Father also argues that the evidence is insufficient to support the jury’s finding
that termination of his parental rights was in Child Two’s best interest. In support of his
argument, Father asserts that despite his struggles with narcotics, DFPS’s decision to
initiate termination proceedings were premature because he was seeking drug treatment
to comply with the service plan, and he was employed in order to support the household
without public assistance. When we consider the Holley factors, as well as others, with
regard to Father, our conclusion is the same as for Mother. The record does not
support Father’s argument that the foster family’s economic means over his was a
determinative factor of the children’s best interests. Father’s drug use and failure to
comply with his service plan is just as probative in the statutory acts or omissions prong
of termination proceeding as well as the finding of what is in the children’s best interest.
See In re C.H., 89 S.W.3d at 28. Here, Father failed to comply more than once with
DFPS’s top priority of the service plan. In addition, testimony was elicited which
indicated social, cognitive, and behavioral improvement from the children since being
removed from appellants’ possession. After reviewing the record in the light most
favorable to the finding, we conclude that the evidence is factually and legally sufficient
to support the jury’s firm belief or conviction that terminating Father’s parental rights to
Child Two was in the child’s best interest.
Father’s sole issue is overruled.
comply with his service plan, see TEX. FAM. CODE ANN. 161.001(1)(O), we need not address his arguments
as to the remaining findings of acts or omission supporting termination. See In re J.F.C., 96 S.W.3d at 261
(requiring only one statutory ground under section 161.001 to meet the first-prong of a termination
proceeding); In re D.S.P., 210 S.W.3d at 779; see also TEX. R. APP. P. 47.1.
12
IV. CONCLUSION
We affirm the trial court’s judgment.
__________________________
GINA M. BENAVIDES,
Justice
Delivered and filed the
21st day of June, 2012.
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