IN THE INTEREST OF AKA CHILD v. <<

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Court of Appeals of Texas, Houston (14th Dist.).

IN THE INTEREST OF C.A.L.H. AKA C.H., A CHILD

NO. 14-16-00899-CV

Decided: February 28, 2017

Panel consists of Justices Boyce, Jamison, and Brown.

MEMORANDUM OPINION

Appellant L.F.H. (“Mother”) appeals the trial court's final decree terminating her parental rights and appointing the Department of Family and Protective Services (“the Department”) as sole managing conservator of C.A.L.H. (“the Child”). Mother's parental rights were terminated on the predicate grounds of endangerment, abandonment, and failure to comply with a family service plan. The trial court further found that termination of Mother's rights was in the best interest of the Child. In four issues Mother challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds, and that termination is in the best interest of the Child. We affirm because the evidence is legally and factually sufficient to support the trial court's findings that (1) Mother's persistent drug use endangered the Child's physical or emotional well-being; and (2) termination is in the Child's best interest.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Pretrial Proceedings

The Child was removed from Mother's care when she was three years old. A neighbor heard the Child screaming and climbed through a window to get her. The Child was home alone. The pretrial removal affidavit noted that the Child had been left alone before. The affidavit also noted that Mother was using drugs and allowing strangers to come in the home to use drugs. Mother denied leaving the Child at home alone but admitted marijuana and PCP use. Mother questioned why she was being drug-tested when everyone who lives around her uses drugs. Mother told the investigator she did not believe anyone went into her home through a window to get the Child. Mother reported “that whoever called in on her is a ‘hater’ and is ‘lying on her.’ ”

The investigator interviewed the Child, who reported that she went to school, her mother cooked, and there was enough food in the home. The Child was able to get to and from school every day with her Mother and said the house always was clean. The Child was free of marks and bruises and was developmentally on target. The Child denied being home alone and denied seeing the neighbor come into the house.

The investigator spoke with Shontel Shaylon Nelson, one of Mother's neighbors. It is unclear from the investigation whether Nelson is the neighbor who made the initial report to the Department. Nelson said she was going to the store to get a beer between midnight and 1:00 a.m. when she was told by another neighbor that the Child could be heard crying. Nelson went in through the kitchen window to investigate, but did not hear the Child crying and saw her asleep in her bed. Nelson left the apartment through the front door and saw Mother outside in her car talking with a friend. Mother got out of her car and hit Nelson, telling Nelson she should not have been in her apartment. The report notes that “Nelson believes that the other neighbors are jealous of [Mother] and that is why CPS was called.”

The Department received an earlier referral when the Child was born. Both Mother and Child tested positive for PCP when the Child was born. Mother completed services through Family Based Safety Services, and the Child was returned.

The report concluded that due to Mother's drug use, the Department believed the Child had been placed in immediate danger of physical health and safety. The Department requested that it be named temporary managing conservator of the Child.

The trial court signed an order removing the Child from the home and naming the Department temporary managing conservator of the Child. Following an adversary hearing, the trial court ordered Mother to comply with a family service plan to obtain the return of the Child. The service plan required Mother to:

• cooperate with the Department, and make reasonable efforts to refrain from any and all criminal and illegal activity;

• complete individual counseling to address her grief/loss regarding her other child not being in her care;1

• maintain six consecutive months or more of suitable housing that is safe, clean, organized, with operational utilities, and free of hazards;

• maintain six consecutive months or more of stable employment or demonstrate she is enrolled in a vocational or educational training program to make herself more employable;

• maintain two supervised visitations with the Child per month;

• submit to random drug and alcohol testing;

• attend and participate in all court hearings, permanency conferences, family group conferences, mediations, and any other meetings requested by CPS;

• maintain monthly contact with the caseworker;

• complete a substance abuse assessment;

• locate, attend, and successfully complete parenting classes; and

• actively participate in a psychosocial evaluation to determine the status of her emotional, mental, and intellectual functioning.

The final permanency report before trial noted that Mother had not demonstrated adequate and appropriate compliance with the service plan.

B. Trial Testimony

Mother did not appear at trial. Mother's counsel asked for a week-long continuance to determine why Mother had not appeared. The trial court denied the request for continuance and proceeded to trial.

Nikia Allen, the Department caseworker, testified that the Child is currently placed in foster care that is meeting all of her physical and emotional needs. Allen testified that Mother tested positive for PCP and cocaine at an earlier show cause hearing. Allen testified that from July 2015 through September 2016, Mother tested positive for PCP four separate times. Mother “walked out” on two drug tests during the same period of time. Mother admitted to using PCP at least five times during the pendency of the termination case. Mother completed her psychosocial assessment, but was unsuccessfully discharged from drug treatment. Mother completed counseling and parenting classes, and attended visits with the Child until the trial court ordered visits to end due to Mother's erratic attendance.

Medical records were admitted showing Mother's and the Child's positive drug tests at the time of the Child's birth. The records reflect that Mother tested positive not only on the Child's birthday, but several days before birth. Evidence of Mother's positive drug tests described by Allen were also admitted. The Child Advocates' Report admitted into evidence reflected Mother's criminal convictions dating back to 2000. Before the Child was born, Mother was convicted twice of possession of a controlled substance, delivery of a controlled substance, driving while intoxicated, illegal use of food stamps, and abandoning or endangering a child.2 After the Child's birth, Mother was convicted of driving with a suspended license and criminal mischief.

Allen testified that it is in the Child's best interest that Mother's rights are terminated because the Child has “grown up around different criminal activities of substance abuse, as well as being left alone in the home and not having adequate supervision.” The Child is currently in a stable environment with two parents who are meeting her needs. The Child has her own room in the foster home and has indicated that she loves her foster parents and wants to remain with them.

Pam Leighton, the Child Advocate volunteer, testified that Mother had continued to use drugs after the Child was born, and failed to provide stable housing. Leighton testified that the foster home was very nice with plenty of space. She testified that the Child enjoys singing, and that the foster family has a piano, which may encourage the Child to pursue music. The Child refers to the foster parents as her mommy and daddy. The Child expressed to Leighton that she wants to stay with the foster parents. Mother's visits with the Child were stopped because Mother was erratic, arriving late, or not showing up at all.

The foster mother testified that she and her husband have had the Child for four months. They have bonded with the Child and want to adopt her.

At the conclusion of the bench trial, the trial court terminated both parents' rights.3 Mother's parental rights were terminated under Family Code section 161.001(b)(1)(E)(endangerment); (N) (constructive abandonment); and (O) (compliance with service plan). See Tex. Fam. Code Ann. § 161.001(b)(1) (West 2015). The trial court further found that termination of the parents' rights was in the best interest of the Child.

Mother filed a motion for new trial following the final decree of termination. In her motion Mother argued that she missed the trial because she was stuck in traffic the day of the trial. After a hearing at which Mother testified that she was stuck in traffic while trying to get to trial, the trial court denied Mother's motion for new trial.

II. ANALYSIS

Mother argues the evidence is legally and factually insufficient to support the trial court's findings under subsections 161.001(b)(1)(E), (N) & (O) of the Texas Family Code.

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 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

The trial court made predicate termination findings that Mother had committed acts or omissions establishing the grounds set out in subsections (E), (N), and (O) of section 161.001(b)(1). Under section 161.001, termination of parental rights is warranted if the fact finder finds by clear and convincing evidence, in addition to the best-interest finding, that the parent has:

(E) 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;

* * * * *

(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:

(i) the department has made reasonable efforts to return the child to the parent;

(ii) the parent has not regularly visited or maintained significant contact with the child; and

(iii) the parent has demonstrated an inability to provide the child with a safe environment; [or]

(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has 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 child's removal from the parent under Chapter 262 for the abuse or neglect of the child[.]

Tex. Fam. Code Ann. § 161.001(b)(1).

Only one predicate finding under section 161.001 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. 2003). We will address the trial court's finding under subsection 161.001(b)(1)(E).

“Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child's physical well-being was the direct result of the parent's conduct, including acts, omissions, or failures to act.” In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). In this context, endanger means “to expose to loss or injury; to jeopardize.” In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.) (quoting In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)). A child is endangered when the environment creates a potential for danger that the parent is aware of but disregards. In re S.M.L., 171 S.W.3d at 477.

Termination under subsection 161.001(b)(1)(E) must be based on more than a single act or omission—the evidence must demonstrate a voluntary, deliberate, and conscious course of conduct by the parent. In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no pet.). “Although ‘endanger’ means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury.” In re T.N., 180 S.W.3d at 383; see also In re J.O.A., 283 S.W.3d at 336 (holding that endangering conduct is not limited to actions directed toward the child). Danger to the child's well-being may be inferred from parental misconduct alone, and courts may look at parental conduct both before and after the child's birth. Id. at 345. (“[T]he endangering conduct may include the parent's actions before the child's birth, while the parent had custody of older child, including evidence of drug usage.”). The conduct need not occur in the child's presence, and it may occur “both before and after the child has been removed by the Department.” Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

As a general rule, subjecting a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied); see also In re J.O.A., 283 S.W.3d at 345, n. 4. A parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct. In re T.N., 180 S.W.3d at 383 (“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 convincing proof of voluntary, deliberate, and conscious conduct that endangered the well-being of her children.”).

Illegal drug use may support termination under subsection 161.001(b)(1)(E) because “it exposes the child to the possibility that the parent may be impaired or imprisoned.” Walker, 312 S.W.3d at 617. This court has also held that a parent's decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, may support a finding that the parent engaged in conduct that endangered the child's physical or emotional well-being. In re S.R., 452 S.W.3d 351, 361–62 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

The evidence at trial showed Mother tested positive for illegal drugs throughout the pendency of the parental termination suit. Mother admitted regular use of PCP and marijuana. Mother had two criminal convictions after the Child was born. The Child was removed from Mother's care because she was found home alone screaming.4

Given the undisputed evidence of Mother's persistent use of illegal drugs during pregnancy and afterwards, and then again during the pendency of this suit when her parental rights were at stake, the trial court had sufficient support for its finding that Mother engaged in a course of conduct that endangered the Child's physical and emotional well-being under section 161.001(b)(1)(E) of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(E).

Reviewing the evidence under the appropriate standards, we conclude that the trial court could have formed a firm belief or conviction that termination of Mother's rights is warranted under section 161.001(b)(1)(E). Because there is legally and factually sufficient evidence of endangerment, we need not address Mother's arguments that the evidence is insufficient to support the trial court's findings under section 161.001(b)(1)(N) and (O). See In re A.V., 113 S.W.3d at 362. We overrule Mother's first three issues.

B. Best Interest of the Child

Mother also 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.

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 her 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 the Department did not provide evidence that the foster family went beyond their duty to provide and care for the Child.

1. Child's desires and proposed placement

The Child was very young at the time of trial, but there was some evidence of her desire to remain with the foster family. 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.).

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.

Contrary to Mother's claim that the foster family did not go beyond their duty to care for the child, the record reflects the foster parents had bonded with the Child and were prepared to adopt her. The foster family maintained a clean, nurturing environment for the Child. Mother cites no authority, nor have we found any, that requires a reversal of the trial court's best interest finding if the evidence shows the foster family did not go beyond their duty to care for the child. In fact, while evidence about placement plans and adoption are relevant to best interest, the lack of evidence about placement, adoption, or the foster family cannot be the dispositive factor. See id.

2. 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).

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).

Mother used drugs while pregnant with the Child, and continued to regularly use drugs after the Child was born and while the parental termination suit was pending. 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.). Mother's behavior evinces a course of conduct that a fact finder reasonably could conclude endangers the Child's well-being.

3. 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 Mother complied with some of her services, but failed to seek counseling, remain drug-free, or maintain consistent visits with the Child. There is no evidence that Mother maintained stable housing or employment. Mother's 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.

4. Parenting abilities and family support

The evidence showed that Mother did not have the parenting skills to care for the Child. The Child was removed from Mother's care because Mother left her alone in an apartment. Mother's visits with the Child were stopped because Mother did not attend regularly, or arrived late at many of the visits. There was no evidence presented about whether Mother had support of family members.

III. CONCLUSION

The record contains evidence supporting the trial court's endangerment and best interest findings based on Mother's drug use and failure to comply with court-ordered services. Based on the evidence presented, the trial court could have reasonably formed a firm belief or conviction that terminating Mother's 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 Mother's parental rights is in the Child's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). We overrule Mother's fourth issue on appeal.

We affirm the decree terminating appellants' rights.

FOOTNOTES

1.   Mother's older child was in college at the time of the Child's removal.

2.   This offense involved operating a motor vehicle while impaired with a child in the car. The child was not one of Mother's children.

3.   The Child's unknown father did not appeal the termination of his parental rights.

4.   According to the pretrial removal affidavit, a neighbor later questioned whether the Child was screaming at the time of the referral, and whether Mother was near the apartment. This discrepancy is not addressed elsewhere in the record. The Department proceeded throughout the termination proceeding with the original allegations that the neighbor found the Child home alone screaming or crying.

William J. Boyce Justice