In the Interest of J.B., A Child
The Texas Department of Family and Protective services (the Department) filed suit to terminate the parental rights of Jasmin's parents, Joseph and Katherine. 1 After a bench trial, the trial court granted the Department's petition for termination of both Joseph's and Katherine's parental rights to Jasmin. Only Joseph appeals the trial court's decision.
In his first point of error, Joseph alleges that the evidence is legally and factually insufficient to prove that he engaged in conduct which endangered Jasmin's physical and emotional well-being or that he constructively abandoned Jasmin as alleged in the Department's petition for termination. In his second point of error, Joseph alleges that the evidence is factually insufficient to support the finding that termination of his parental rights is in Jasmin's best interest. After reviewing the record, we affirm the trial court's ruling.
I. Summary of the Evidence
Katherine gave birth to Jasmin on July 25, 2014, and both Katherine and Jasmin tested positive for the presence of cocaine at delivery. Katherine admitted to using marihuana during her pregnancy, and she further admitted that she was addicted to drugs. At the time of Jasmin's birth, Joseph was incarcerated in the Gregg County jail on a bond forfeiture for a pending criminal trespass charge. Accordingly, Jasmin was removed by the Department and placed in foster care. She was later placed with relatives.
Joseph initially denied paternity and requested a paternity test. The testing confirmed that Joseph is Jasmin's biological father. The test results were filed with the court on October 8, 2014. The trial court entered an order establishing the parent-child relationship on January 22, 2015. A service plan was provided to him in May 2015.
The termination hearing was held two days before Jasmin's first birthday, and by that time, Joseph had been in county jail about two months. Altogether, Joseph spent approximately 116 days of Jasmin's first year in jail. 2 Approximately one week prior to the termination hearing, Joseph entered into a plea agreement with the District Attorney resulting in the revocation of his community supervision and a sentence of four years' imprisonment. 3 Caseworker Brittani Rogers testified that Joseph “had been incarcerated numerous times for assault,” including some instances of assault involving family violence.
Joseph admitted that he had used cocaine, but he claimed his drug use was infrequent. Joseph claimed that he first used cocaine about three years before the termination hearing and that he last used cocaine five or six months before the termination hearing. Joseph also admitted that he used marihuana and drank alcohol socially. Two years before trial, Joseph said he completed seven days in an inpatient substance abuse rehabilitation facility. According to Rogers, Joseph “admitted that he had a cocaine problem; that when he uses [drugs], it is cocaine.” Rogers also testified that despite repeated requests, Joseph never submitted to a drug test and that the Department's policy was to treat such conduct as an admission of illegal drug use.
Finally, as a result of his chronic incarceration history, Joseph was not able to maintain employment and did not financially support Jasmin. In the period after the Department took possession of Jasmin, Joseph accrued child support in the amount of $889.76, but he only paid $5.89.
II. Standard of Review
“The natural right existing between parents and their children is of constitutional dimensions.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). “Indeed, parents have a fundamental right to make decisions concerning ‘the care, custody, and control of their children.’ ” In re L.E.S., 471 S.W.3d 915, 919 (Tex.App.–Texarkana 2015, no pet.) (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000). “Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial.” In re A.B., 437 S.W.3d 498, 502 (Tex.2014). “This Court is therefore required to ‘engage in an exacting review of the entire record to determine if the evidence is ․ sufficient to support the termination of parental rights.’ ” L.E.S., 471 S.W.3d 919–20 (quoting A.B., 439 S.W.3d at 500). “ ‘[I]nvoluntary termination statutes are strictly construed in favor of the parent.’ ” In re S.K.A., 236 S.W.3d 875, 900 (Tex.App.–Texarkana 2007, pet. denied) (quoting Holick, 685 S.W.2d at 20).
“In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest.” L.E.S., 471 S.W.3d at 920 (citing Tex. Fam.Code Ann. § 161.001 (West 2014); In re E.N.C., 384 S.W.3d 796, 798 (Tex.2012)). “ ‘Clear and convincing evidence’ is that ‘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. (quoting Tex. Fam.Code Ann. § 101.007 (West 2014)); see In re J.O.A., 283 S.W.3d 336, 344 (Tex.2009). “This standard of proof necessarily affects our review of the evidence.” L.E.S., 471 S.W.3d at 920.
“In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven.” Id. (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex.App.–Texarkana 2011, no pet.)). “We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing J.P.B., 180 S.W.3d at 573).
“In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex.2006) (per curiam)). We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine “ ‘whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the ․ allegations.’ ” Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.2002)); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex.2002). “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.” J.F.C., 96 S.W.3d at 266. This determination requires that we undertake “ ‘an exacting review of the entire record with a healthy regard for the constitutional interests at stake.’ ” A.B., 437 S.W.3d at 503 (quoting C.H., 89 S.W.3d at 26).
“Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, ‘ “the rights of natural parents are not absolute; protection of the child is paramount.” ’ ” L.E.S., 471 S.W.3d at 920 (quoting In re A.V., 113 S.W.3d 355, 361 (Tex.2003)); see In re M.S., 115 S.W.3d 534, 547 (Tex.2003). “A child's emotional and physical interests must not be sacrificed merely to preserve parental rights.” In re C.A.J., 459 S.W.3d 175, 179 (Tex.App.–Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).
II. Application of the Law to the Facts
“ ‘Only one predicate finding under Section 161.001(b)(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 O.R.F., 417 S.W.3d 24, 37 (Tex.App.–Texarkana 2013, pet. denied) (quoting A.V., 113 S.W.3d at 362); see In re K.W., 335 S.W.3d 767, 769 (Tex.App.–Texarkana 2011, no pet.); In re N.R., 101 S.W.3d 771, 775 (Tex.App.–Texarkana 2003, no pet.). Here, the trial court terminated Joseph's parental rights on two grounds. First, the trial court found that Joseph had “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the child” under Section 161.001(b)(1)(E).4 Second, the trial court found that Joseph had
constructively abandoned the child who ha[d] been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months and: (1) the Department or authorized agency ha[d] made reasonable efforts to return the child to the father; (2) the father ha[d] not regularly visited or maintained significant contact with the child; and (3) the father ha[d] demonstrated an inability to provide the child with a safe environment
under Section 161.001(b)(1)(N).5 Because we find that the evidence is sufficient to support the trial court's finding as to the first ground, we do not address the finding on the second ground. See O.R.F., 417 S.W.3d at 37.
A. The Evidence Supporting the Trial Court's Finding that Grounds Existed to Terminate Joseph's Parental Rights Under Section 161.001(b)(1) of the Family Code is Legally and Factually Sufficient
Section 161.001(b)(1)(E) provides that the trial court may terminate the parent-child relationship if it finds the existence of clear and convincing evidence showing that the parent “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical and emotional well-being of the child.” Tex. Fam. Code Ann. § 161.001(b)(1)(E) (West 2015). “ ‘Endanger’ ․ ‘means to expose to loss or injury․’ ” In re N.S.G., 235 S.W.3d 358, 367 (Tex.App.–Texarkana 2007, no pet.) (quoting Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987) (citations omitted)). It is not necessary that the conduct be directed at the child or that the child actually suffer injury. Under subsection (E), it is sufficient that the child's well-being is jeopardized or exposed to loss or injury. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987); N.S.G., 235 S.W.3d at 367. “Further, termination under subsection (E) must be based on more than a single act or omission. Instead, a “ ‘voluntary, deliberate, and conscious course of conduct by the parent is required.’ ” L.E.S., 471 S.W.3d at 923 (quoting Perez v. Tex. Dep't of Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex.App.–El Paso 2004, no pet.) (citing In re K.M.M., 993 S.W.2d 225, 228 (Tex.App.–Eastland 1999, no pet.)); see Boyd, 727 S.W.2d at 533; N.S.G., 235 S.W.3d at 366–67.
“While we recognize that imprisonment, standing alone, is not conduct which endangers the physical or emotional well-being of the child, ‘intentional criminal activity which expose[s] the parent to incarceration is relevant evidence tending to establish a course of conduct endangering the emotional and physical well-being of the child.’ ” In re L.E.S., 471 S.W.3d at 924 (quoting In re A.W.T., 61 S.W.3d 87, 89 (Tex.App.–Amarillo 2001, no pet.) (per curiam)) (citing Allred v. Harris Cnty. Child Welfare Unit, 615 S.W.2d 803, 806 (Tex.App.–Houston [1st Dist.] 1980, writ ref'd n.r.e.)).
“ ‘[C]onduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child. Drug use and its effect on a parent's life and h[er] ability to parent may establish an endangering course of conduct.’ ” J.L.B., 349 S.W.3d at 848 (quoting In re N.S.G., 235 S.W.3d 358, 367–68 (Tex.App.–Texarkana 2007, no pet.)); see J.O.A., 283 S.W.3d at 345 n.4; In re S.N., 272 S.W.3d 45, 52 (Tex.App.–Waco 2008, no pet.) (“Evidence of illegal drug use or alcohol abuse by a parent is often cited as conduct which will support an affirmative finding that the parent has engaged in a course of conduct which has the effect of endangering the child.”). “Because it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under section 161.001(b)(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) (citing Vasquez v. Tex. Dep't Protective & Regulatory Servs., 190 S.W.3d 189, 195–96 (Tex.App.–Houston [1st Dist.] 2005, pet. denied) (“terminating parental rights despite there being no direct evidence of parent's continued drug use actually injuring child”)).
The trial court had before it evidence that Joseph was incarcerated in the county jail both on the day of Jasmin's birth and on the day of the termination trial one year later. Altogether, Joseph spent more than one hundred days in jail during the first year of Jasmin's life. Joseph's complete criminal history was not introduced into the record, but the testimony established that he was incarcerated numerous times for violating the terms of his community supervision and for committing new offenses. Just days before the trial, Joseph entered a plea agreement whereby he was sentenced to serve four years' incarceration for the felony offense of assault/family violence.
Although Joseph claimed he did not use drugs with Katherine and was not aware of her drug abuse or addiction, he also testified that he had diagnosed himself with a cocaine addiction two years prior to trial, that he had completed a seven-day inpatient treatment program, and that he had used cocaine at least once five or six months before trial. Moreover, the Department's caseworker testified that every time she asked Joseph to submit to drug testing, he refused or failed to appear and that the Department's policy was to treat such refusals as admissions of illegal drug use. 6 Accordingly, the trial court could have reasonably concluded from this testimony that not only was Joseph addicted to illegal drugs, but that he also was aware that Katherine was addicted to illegal drugs. 7
Drug abuse and frequent imprisonment are factors we have previously found to support a finding that a parent has engaged in a course of conduct that endangered the child's physical or emotional well-being. In re J.J., 911 S.W.2d 437, 440 (Tex.App.–Texarkana 1995, writ denied). We may consider the parent's behavior both before and after the child's birth when reviewing whether the alleged course of conduct has been established. In re C.A.B., 289 S.W.3d 874, 883 (Tex.App.–Houston [14th Dist.] 2009, no pet.). Therefore, considering Joseph's history of frequent incarcerations as well as the fact that Joseph was in jail at the time of Jasmin's birth and would be serving a four year prison sentence after the termination hearing, the trial court could have concluded that Joseph engaged in conduct that endangered Jasmin's physical and emotional well-being. Moreover, the trial court could also have reasonably concluded (1) that because Joseph had a chronic drug addiction and had experience with drugs, he knew that Katherine was also addicted, (2) that Joseph knew that neither he nor Katherine were in a position to provide a stable home and support Jasmin as a result of their drug addictions and his frequent incarcerations, and (3) that but for the Department's intervention, and as a result of his frequent incarcerations and pending four-year prison sentence, Jasmin would have been in Katherine's possession after her birth. Based on the preceding reasonable conclusions, the trial court could also reasonably have concluded that Joseph knowingly placed Jasmin with someone (Katherine) who would endanger her physical or emotional well-being.
Consequently, we find the evidence legally and factually sufficient to support a finding, by clear and convincing evidence, that Joseph engaged in conduct, or knowingly placed Jasmin with a person who engaged in conduct, which endangered Jasmin's emotional or physical well-being.
B. The Evidence Supporting the Trial Court's Finding that Termination of Joseph's Parental Rights Was in Jasmin's Best Interest Under Section 161.001(b)(2) of the Family Code is Factually Sufficient
Joseph also challenges the trial court's finding that termination of Joseph's parental rights was in Jasmin's best interest. “There is a strong presumption that keeping a child with a parent is in the child's best interest.” In re J.A.S., Jr., No. 13–12–00612–CV, 2013 WL 782692, at *7 (Tex.App.–Corpus Christi Feb. 28, 2013, pet. denied) (mem.op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex.2006) (per curiam)). Judicial actions such as termination “ ‘can never be justified without the most solid and substantial reasons.’ ” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976) (quoting State v. Deaton, 54 S.W. 901, 903 (Tex.1900)); see also In re N.L.D., 412 S.W.3d 810, 822 (Tex.App.–Texarkana 2013, no pet.). In determining the best interest of the child, courts consider the following factors:
(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, (6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.
Id. at 818–19 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.1976)); see In re E.N.C., 384 S.W.3d 796, 807 (Tex.2012); see also Tex. Fam.Code Ann. § 263.307(b) (West Supp.2015). “A lack of evidence does not constitute clear and convincing evidence.” E.N.C., 384 S.W.3d at 808. We review the trial court's decision on the best interest of the child issue for an abuse of discretion. In re S.A.G., 403 S.W.3d 907, 917 (Tex.App.–Texarkana 2013, pet. denied).
The first factor is neutral because there was no evidence indicating Jasmin's desires. As a one-year-old child, Jasmin's current and future emotional and physical needs are substantial, but there is no evidence that Joseph had provided for Jasmin's emotional or physical needs in the past, and because he was so frequently incarcerated before trial and would be incarcerated for some time after trial, the evidence strongly implies that he will be unable to do so in the future. Accordingly, the second and third factors weigh strongly in favor of termination.
Additionally, Joseph did not demonstrate any parenting skills prior to the date of trial. He admitted that he had not held a steady job in some time, and his future employment opportunities are limited in view of his pending prison sentence. He also demonstrated no effort to abide by the Department's family service plan. 8 Nothing in Joseph's testimony, or that of any other witness, suggested that Joseph would abide by, or would be in a position to abide by, the service plan or any other plan in such a way as to provide for a safe and stable home life for Jasmin. 9 Moreover, the trial court could reasonably have concluded that Joseph's chronic incarceration history, coupled with his disinclination to take any active steps toward parenting, presented an improper or at least unhealthy relationship between the parent and child. 10
By contrast, Jasmin's guardian ad litem, Gretchen Tucker, testified that Jasmin was very happy, healthy, and bonding well with Jasmin's aunt and cousin where she had been placed by the Department. Jasmin had been with these relatives since the first month of her life, they had diligently taken her to all of her medical appointments, and they wanted to adopt her. One of the relatives, who from Tucker's testimony seemed to be Jasmin's primary caregiver, was a nurse and was studying to be a nurse practitioner.
Also, Tucker testified that in her opinion, adoption by the family was in Jasmin's best interest, that placement with Joseph at the time of trial was not in Jasmin's best interest, and that Joseph had acknowledged to Tucker he could not presently provide adequate care for his daughter. Tucker described Jasmin's current placement as “just the perfect place, from everything I've seen.” She added, “I've done other cases, and it's never been so clear of a good choice and that this is what really needs to happen. She'll have a good life. She already has a good life now.”
Jasmin's maternal grandmother, after expressing great concern about Katherine's constant use of illegal drugs, said she had visited Jasmin the Sunday before trial and that the child appeared to be healthy and have everything she needed. She did not believe Jasmin's emotional or physical well-being would be helped if she were to be placed with Joseph and Katherine. 11 Accordingly, the fourth, fifth, sixth, seventh, and eighth factors weigh heavily in favor of termination. Finally, no evidence was presented establishing any excuse for Joseph's acts or omissions, so the ninth factor is neutral.
In summary, seven of the nine Holley factors weight strongly in favor of termination, two are neutral, and none weigh against termination of Joseph's parental rights. Consequently, we find that the evidence is factually sufficient to support the trial court's finding that termination of Joseph's parental rights was in Jasmin's best interest.
For all of the foregoing reasons, we find that the trial court did not abuse its discretion in finding that termination of Joseph's parental rights was warranted under Section 161.001(b)(1)(E) and that termination was in Jasmin's best interest under Section 161.001(b)(2). Accordingly, we overrule Joseph's points of error and affirm the trial court's judgment.
1. We will use the pseudonyms employed by the Department to protect the child's identity. See Tex.R.App. P. 9.8.; Tex. Fam.Code Ann. § 109.002(d) (West 2014).
2. Joseph spent one day in jail on September 11, 2014, after he was arrested for a charge of theft over fifty dollars. He was in jail from January 1, 2015, until February 5, 2015, for violating the terms and conditions of his community supervision imposed after he pled guilty to felony assault involving family violence. He was again incarcerated from April 23, 2015, until May 1, 2015, for a new charge of assault/family violence. On May 20, 2015, Joseph was again arrested on one charge of violating a protective order and two new charges of assault involving family violence.
3. The Department admitted a judgment showing Joseph's conviction of assault involving family violence, for which Joseph was sentenced to ten years' imprisonment, with the sentence suspended. One week prior to the termination hearing, Joseph's community supervision was revoked, and he was sentenced to four years' imprisonment.
4. See Tex. Fam.Code Ann. § 161.001(b)(1)(E) (West Supp.2015).
5. See Tex. Fam.Code Ann. § 161.001(b)(1)(N) (West Supp.2015). The Department's petition also alleged grounds under Section 161.001(b)(1), subsections (O) and (P).
6. Rogers was not precise in how many times she asked Joseph for drug tests, but from her testimony it is reasonable to infer it occurred at least twice. A refusal to submit to a drug test allows a reasonable inference that the person knew they would test positive for drug use. In re C.R., 263 S.W.3d 368, 374 (Tex.App.–Dallas 2008, no pet.); In re J.T.G., 121 S.W.3d 117, 131 (Tex.App.–Fort Worth 2003, no pet).
7. “In a bench trial, the trial court, as fact-finder, is the sole judge of the credibility of the witnesses.” Munters Corp. v. Swissco–Young Indus., Inc., 100 S.W.3d 292, 296 (Tex.App.–Houston [1st Dist.] 2002, pet. dism'd). Thus, the trial court could have concluded that Joseph's denial of any knowledge of Katherine's addiction was not credible.
8. In his brief, Joseph complains that he was only provided the service plan in May 2015, three months prior to the termination hearing and, therefore, could not possibly have complied with that plan. Nevertheless, the facts explaining the Department's delay in providing the service plan to Joseph do not benefit his position. Instead, they further support the trial court's finding that termination of his parental rights was in Jasmin's best interest.When the Department first took possession of Jasmin, Rogers drafted a service plan for Joseph to follow in order to gain reunification with Jasmin. Although Joseph testified he frequently requested a copy of the service plan, Rogers testified that it was difficult to connect with Joseph to review the service plan with him because he was constantly in and out of jail. On two occasions after he was released from jail, Joseph arrived unannounced at Rogers' office when she was busy and could not meet with him. Each time she scheduled an appointment for him on a later date to review the service plan, but both times he failed to appear at the scheduled times. On another occasion, Joseph arrived at Rogers' office after 5:00 p.m. as she was leaving to pick up her own children. Yet, seeing that he was “highly upset,” Rogers offered to take him to retrieve the plan and review it with him at that time. Instead, Joseph told her, “No, I'm done,” and he “walked out of the building.”On another occasion, following a supervised visitation of Jasmin by Joseph and Katherine, Rogers observed that Joseph seemed very tired, unable to “hold his head up.” When Rogers asked Joseph if he was alright, he got irritated. Rogers clarified that Joseph did not appear intoxicated because had no slurred speech and did not smell of alcohol or marihuana, but both Katherine and Joseph looked like “they had been up all night ․ [and] [t]hey were highly irritable.” In response to her question about their well-being, Katherine yelled at Rogers, and according to Katherine's mother, who witnessed the encounter, Katherine was “roaring like a lion.” Joseph did not yell at Rogers, but he told her to “shut [her] mouth” and said that she (Rogers) had “nothing to say to him.” Rogers further testified that Joseph “was too close for [her] comfort.” Rogers “was unsure of what his behavior would have been if [she] would have challenged what he was saying to [her], so [she] remained quiet.” As a result of this incident, a temporary restraining order was issued prohibiting visitation by either parent. Rogers was finally able to serve the service plan on Joseph in May 2015 and review it with him in jail after he was arrested on the State's motion to revoke his community supervision.
9. Rogers testified that she was not aware of any income or means of support that Joseph could provide, and that he had done nothing to actively seek reunification with Jasmin.
10. Rogers said Joseph did not regularly attend the Department's arranged visitations with Jasmin; regarding at least one, Joseph “stated ․ [that Katherine had] dragged him into the visitation” and that “he did not want to come.”
11. Yet, Jasmin's grandmother also said she believed that Joseph could eventually be a good father and that he was a good father to his other children. Joseph testified that he had five other children, aged eleven to seventeen, by three different mothers.
Memorandum Opinion by Justice Burgess