IN THE INTEREST OF v. <<

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Court of Appeals of Texas, Houston (1st Dist.).

IN THE INTEREST OF A.H.L., A Child

NO. 01-16-00784-CV

Decided: March 28, 2017

Panel consists of Justices Jennings, Higley, and Massengale.

MEMORANDUM OPINION

This is an accelerated appeal from a decree terminating parental rights. In her only viable appellate issue, the mother asserts that the evidence was legally and factually insufficient to show that termination was in the best interest of her child. See TEX. FAM. CODE § 161.001(b). We find sufficient evidence to support the trial court's decree, and we affirm.

Background

The mother in this case gave birth to a son, A.H.L., at 27 weeks' gestation. Due to complications of prematurity, the child spent the first four months of his life in the hospital. The mother was 37 years old, and she had schizoaffective disorder, for which she was receiving care from a psychiatrist and taking medication.

While the baby was in the hospital, nurses and others observed the mother's behavior. At times, she refused to touch the child because she believed “the devil was inside of him.” She required reminders to visit him. She did not feed him or change his diaper as was expected of parents by hospital staff. Instead, she had the nurses feed and change him. She refused to stay overnight with the baby when his doctor asked her to demonstrate her ability to care for him. When hospital staff sought permission to administer routine vaccinations, she accused them of abusing the baby.

During one visit, the hospital staff became concerned for the baby's well-being upon discharge. The mother did not know the day, date, or time, and she was delusional, paranoid, and agitated. She spoke rapidly, and her thoughts were jumbled. In addition to this unusual behavior, the mother had not demonstrated an ability to care for her child, and the hospital staff were uncertain about the conditions the baby would encounter upon release from the hospital.

A referral for neglectful supervision was made to the Department of Family and Protective Services, and a caseworker investigated. The caseworker saw A.H.L. at the hospital, and she reported that the baby was generally in good health except for a lingering bowel issue. The caseworker saw the mother ten days later at the home she shared with her disabled aunt. The mother told the caseworker that she was on maternity leave, but she had made no preparations in anticipation of the baby's discharge from the hospital. Although the infant was expected to be released from the hospital soon, the only baby item in the mother's possession was a bottle of baby oil. The mother told the caseworker that the baby would go home with a woman named Felisha Davis, but no contact information for this woman was provided.

The caseworker asked the mother about her criminal and mental-health history. Despite having several prior criminal convictions, the mother denied having any criminal history. She admitted that she had schizophrenia and that she took Haloperidol, an antipsychotic medication. She refused to sign a release to allow the Department to obtain her medical records because she did not like the texture of the paper. She also complained that the caseworker failed to offer an interpreter or ask her which language she preferred, even though she spoke only English.

Based on the investigation, baby A.H.L. was placed in foster care upon discharge from the hospital. While the infant had bonded with a nurse in the hospital, when he entered foster care he initially had difficulty bonding with his caregivers. Gradually, he bonded with his foster mother, and he began making eye contact, grabbing her hand, and smiling.

In addition to bonding issues, A.H.L. had medical issues. When he entered foster care, he had asthma, a bleeding eye, and bowel issues. He required surgery for a hernia and to correct tongue and lip ties. He regularly saw a gastroenterologist for acid reflux and an otolaryngologist due to frequent ear infections, concerns about his hearing, and the possible need for ear tubes and adenoid removal.

Because he had spent months in the hospital, A.H.L. had developmental delays. He experienced feeding difficulties and required expensive formula. His strength was asymmetrical, and he had both torticollis (twisted neck) and plagiocephaly (flat head syndrome). As he grew, he began to sit and crawl, but because of delays in reaching developmental milestones, he received both occupational and physical therapy.

Child Advocates became involved not long after A.H.L. was released from the hospital, and Child Advocate Laura Beth Nelson was assigned to the case at the end of October 2015. Nelson did not testify at trial, but her June 2016 report was admitted into evidence. In it Nelson observed that the mother had participated in supervised visits, but she expressed concern as to whether the mother understood the care required to address the baby's health needs. She also observed that the foster caregiver ensured that he went to all of his appointments and received the care he needed. Therefore, she recommended that the child remain in his current placement.

The Child Advocate Coordinator, LaToya Porter, testified at trial consistently with the observations and conclusions in Nelson's report. She testified that she had not met the foster parents, and although she had met the maternal grandmother, she had not been to the grandmother's house. However, based on her observations and review of the case records, Porter opined that it was in the child's best interest for the mother's rights to be terminated. She elaborated on the numerous medical issues and developmental delays, which required significant medical care and multiple appointments with doctors and specialists. Based on her observations of the mother and her review of the case, she did not believe that the mother was capable of caring for the child's special medical needs. She noted that the current foster parents were meeting those needs, and they wanted to adopt.

Meanwhile, the mother had been offered a family plan of service. She completed some of the required services, including attending parenting classes, taking some drug tests, and participating in substance-abuse counseling sessions. But the mother said that successive changes in caseworkers and unreturned phone calls to the Department left her without the paperwork she needed to complete the required substance-abuse counseling. She testified that she was willing to complete the requirements of the family service plan, but she conceded there were deficiencies other than the incomplete substance-abuse counseling. Although she was not employed, as required by the plan, she received Social Security disability payments. She also acknowledged that she did not yet have a stable living situation. Because she lacked a stable home, she asked the court to place the baby with her mother.

A.H.L.'s maternal grandmother testified that she was raising three of her grandchildren, who were 13, 15, and 17 years old at the time. They were all siblings—children of the mother in this case. The mother had lost custody of them due to her use of controlled substances during two of her pregnancies, and the grandmother had been granted permanent managing conservatorship. The grandmother was aware of A.H.L.'s situation early in the case, but he was not placed with her because she refused to complete a home study. Both the grandmother and Porter, the Child Advocates Coordinator, testified that the home study was refused because the person who attempted to conduct the study lacked identification. The grandmother testified that she did not want to invite a “stranger” into her home. The grandmother also testified that she did not seek custody of A.H.L. because she temporarily lacked stable housing due to a house fire, but by the time of trial she had a stable living situation and wished to have custody of him. The grandmother felt confident in her ability to care for A.H.L. because she had successfully cared for the thirteen-year-old, who had similar health issues as a baby, including acid reflux, asthma, and eczema.

The family plan of service was admitted into evidence. It required the mother to maintain a drug-free lifestyle and to submit to random drug screenings to demonstrate her compliance with that requirement. In October 2015, the mother tested positive for alcohol, at a level that showed she had consumed one or two drinks. Two months later, she failed to appear for a scheduled drug test. In March 2016, she tested positive for cocaine and cocaine metabolites, at levels that indicated that she had used cocaine more than once in the three months prior to the test. At trial the mother testified that she had used cocaine twice in the 90 days preceding the test. In June 2016, the mother had a drug test that was completely clean. At trial, the mother could not recall exactly when she last used cocaine. She said only, “It's been a while ago.”

In addition to evidence of the mother's history of positive drug tests, evidence of her criminal history also was introduced at trial. Between 1995 and 2005, the mother was convicted of seven criminal offenses. She was convicted of misdemeanor possession of marijuana three times, in 1995, 1996, and 2000. In 1996, she was convicted of misdemeanor failure to identify herself to a peace officer, and in 1997, she was convicted of the misdemeanor offense of unlawfully carrying a weapon. In 1999, she was convicted of the felony offense of manufacture and delivery of a controlled substance. In 2005, she was convicted of felony possession of a controlled substance. The mother testified that she was last convicted of a crime in 2005.

The trial court found that the mother had committed the predicate acts of endangerment and failure to comply with a court order and that termination of the mother's parental rights was in A.H.L.'s best interest, and it terminated her parental rights to A.H.L. The mother appealed.

Analysis

The Department sought termination of the mother's parental rights on grounds of endangerment, see TEX. FAM. CODE § 161.001(b)(1)(E), and failure to comply with a court order, see id. § 161.001(b)(1)(O). “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 A.V., 113 S.W.3d 355, 362 (Tex. 2003). The mother concedes that the evidence was legally and factually sufficient to support the finding that she endangered her child. See TEX. FAM. CODE § 161.001(b)(1)(E). In light of this concession, we overrule the mother's first issue, a challenge to the endangerment finding, and we do not consider the mother's second issue, the sufficiency of the evidence to support the finding that she failed to comply with a court order. See A.V., 113 S.W.3d at 362.* Thus the only remaining issue is the mother's contention that the evidence was legally and factually insufficient to show that termination was in the best interest of the child. See TEX. FAM. CODE § 161.001(b)(2).

Protection of the best interests of the child is the primary focus of the termination proceeding in the trial court and our appellate review. See A.V., 113 S.W.3d at 361. A parent's right to the care, custody, and control of her children is a precious liberty interest protected by the Constitution. See, e.g., Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000); Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982). Accordingly, termination proceedings are strictly scrutinized on appeal. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence must support the decision to terminate parental rights. In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002); see also Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92.

Evidence is legally sufficient if it is “such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof.” J.F.C., 96 S.W.3d at 266; see TEX. FAM. CODE § 101.007. We review “the evidence in the light most favorable to the judgment,” meaning that we “must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” J.F.C., 96 S.W.3d at 266. “If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient.” Id.

In a factual sufficiency review, we consider the entire record, including evidence both supporting and contradicting the finding. See id.; In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). “If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” J.F.C., 96 S.W.3d at 266. In proceedings to terminate the parent-child relationship, the Department must establish by clear-and-convincing evidence that one or more of the acts or omissions listed in Family Code Section 161.001(b)(1) occurred and that termination is in the best interest of the child. TEX. FAM. CODE § 161.001(b). Both elements must be established, and termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

In two paragraphs—two-thirds of one page in a 27-page appellant's brief—the mother's brief analyzes the legal and factual sufficiency of the evidence that termination was in the best interest of the child. There are no distinct arguments about legal and factual sufficiency. Instead, the brief challenges the quality of evidence presented by the Department, arguing that Porter, the Child Advocate Coordinator, lacked knowledge of the case because she had not met the foster parents or visited the maternal grandmother's house. The mother also contends that she is willing to finish the service plan and asserts that because A.H.L. was born prematurely, he “needs his mother to provide the love and care that only a mother can provide.”

A strong presumption exists that a child's best interests are served by maintaining the parent-child relationship. See, e.g., In re G.M., 596 S.W.2d 846, 846–47 (Tex. 1980); In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). In determining whether termination of a mother's parental rights was in the child's best interest, we consider several nonexclusive factors, including (1) the child's desires, (2) the current and future physical and emotional needs of the child, (3) the current and future physical danger to the child, (4) the parental abilities of the person seeking custody, (5) whether programs are available to assist the person seeking custody in promoting the best interests of the child, (6) plans for the child by the person seeking custody, (7) stability of the home, (8) acts or omissions of the parent that may indicate that the parent-child relationship is improper, and (9) any excuse for acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Department is not required to prove all of these factors, and the absence of evidence about some factors does not preclude the factfinder from reasonably forming a strong conviction that termination is in the children's best interest. See C.H., 89 S.W.3d at 27. Evidence establishing one of the predicate acts under Section 161.001(b)(1) also may be relevant to determining the best interests of the children. See id. at 27–28.

The mother's brief entirely fails to utilize the Holley factors to analyze the sufficiency of the evidence. Likewise, it is not apparent from the 29 pages of trial transcript that the State made appropriate efforts to present competent evidence corresponding to relevant Holley factors. The record and argumentation in this case are regrettably thin.

A.H.L. was approximately 15 months old at the time of trial, and there is no evidence of his desires. When a child is too young to express his desires, the factfinder 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. See, e.g., In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A.H.L. is bonded to his foster parents, who have cared for him and provided for his continuing special medical and developmental needs. He has been with them since he was discharged from the hospital as an infant. The factfinder reasonably could have concluded that this factor weighs in favor of a determination that termination was in the best interest of the child.

The current and future physical needs of the child in this case are closely related to parental abilities of and plans for the child by the person seeking custody. The evidence showed that A.H.L. has numerous physical and developmental needs which require intervention from caregivers, medical professionals, and other specialists. Both Nelson and Porter from Child Advocates expressed concern, supported by evidence, about whether the mother appreciated the gravity of the child's needs. The mother had not made plans for A.H.L. during his four-month hospital stay. When the caseworker interviewed her after receiving the referral, the mother had none of the supplies necessary for caring for a baby except for a single bottle of baby oil. In contrast, the evidence was uncontroverted that the foster parents had taken good care of A.H.L., who was thriving in their home. These factors also reasonably could be considered by the factfinder to support a determination that termination was in the best interest of the child.

The stability of the home has been found “to be of paramount importance in a child's emotional and physical well-being.” Quiroz v. Dep't of Family & Protective Servs., No. 01–08–00548–CV, 2009 WL 961935, at *10 (Tex. App.—Houston [1st Dist.] April 9, 2009, no pet.) (mem. op.). “Without stability,” a parent cannot “provide for the child's emotional and physical needs.” In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.). A parent's drug use may indicate instability in the home because it exposes the children to the possibility that the parent may be impaired or imprisoned. See In re A.M., 495 S.W.3d 573, 579 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); P.W. v. Dep't of Family & Protective Servs., 403 S.W.3d 471, 479 (Tex. App.—Houston [1st Dist.] 2013, pet. dism'd w.o.j.). Similarly, a parent's history of “criminal conduct” can reveal “a pattern of conduct that subjects a child to an uncertain and unstable life, endangering the child's physical and emotional well-being.” In re G.A., No. 01-11-00565-CV, 2012 WL 1068630, at *6 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem. op.).

In this case, the mother conceded at trial that she did not have a stable home. A reasonable factfinder also could consider her history of drug use and criminal activity as evidence of instability in the home. See A.M., 495 S.W.3d at 579; P.W., 403 S.W.3d at 479. The mother continued using cocaine while this case was pending, knowing that her parental rights to A.H.L. were in jeopardy. Cf. Latham v. Dep't of Family & Protective Servs., 177 S.W.3d 341, 348 (Tex. App.—Houston [1st Dist.] 2005, no pet.). These factors reasonably could be considered by the factfinder to support a determination that termination was in the best interest of the child.

We conclude the evidence in this case is legally and factually sufficient to support the trial court's finding that termination of the mother's parental rights was in the best interest of A.H.L. We overrule the mother's third issue.

Conclusion

We affirm the decree of the trial court.

FOOTNOTES

FOOTNOTE.   We note that the appointed appellate lawyer for the mother has filed briefs in at least five other appeals to this court in the last year that stated issues purporting to challenge one or more predicate grounds for termination, while simultaneously defeating those issues by conceding the sufficiency of at least one predicate ground. Predictably, none of these appellate arguments have resulted in any relief for the attorney's indigent clients. See, e.g., In re D.E.B., No. 01-16-00562-CV, 2016 WL 7671378, at *5 (Tex. App.—Houston [1st Dist.] Dec. 22, 2016, pet. filed) (mem. op.) (“Because Mother concedes that at least one predicate finding is supported by legally and factually sufficient evidence, we not need not address her first three issues, challenging the sufficiency of the evidence to support the other predicate findings.”); In re B.A.B., No. 01-16-00360-CV, 2016 WL 5480627, at *2 (Tex. App.—Houston [1st Dist.] Sept. 29, 2016, pet. denied) (mem. op.) (“Because the mother concedes that at least one predicate finding is supported by legally and factually sufficient evidence, we do not need to address her challenges to the sufficiency of the evidence to support the other predicate findings.”). Without speculating about why the attorney persists in raising such futile appellate issues, we discourage continuation of the practice, which is wasteful of both appointed-lawyer resources and judicial resources.

Michael Massengale Justice