in the Interest of L.L.C., Child v. Department of Family and Protective Services ( 2018 )

Opinion issued June 7, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-17-00961-CV
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IN THE INTEREST OF L.L.C., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2016-03967J
MEMORANDUM OPINION
This is an appeal from the trial court’s order terminating a mother’s parental
rights to her daughter. The trial court found that termination was warranted under
Texas Family Code subsections 161.001(b)(1)(D), (E), and (O), and that termination
was in the best interest of the child under subsection 161.001(b)(2). The mother
challenges the factual sufficiency of the evidence supporting the trial court’s finding
that termination was in the child’s best interest. We conclude that factually sufficient
evidence supports the finding and therefore affirm.
BACKGROUND
Lara (a pseudonym) was born in California in August 2015. At the time, the
state of California had the mother under witness protection in connection with the
criminal case against Lara’s father, now a convicted sex trafficker.1 In April 2016,
the mother left California with Lara to avoid testifying against the father. She came
to Texas at the invitation of an online acquaintance, Cassius Johnson, who told her
he had a job for her. Johnson sent a woman to the bus station to meet the mother
and child. When they arrived at Johnson’s house, the woman took Lara. Johnson
kept Lara away from the mother and sent the mother to the Dallas area to prostitute
for him.
In June 2016, police in Austin took the mother into custody after a traffic stop
led to the discovery of an outstanding warrant for felony theft based on an incident
that had occurred in 2012. After she was released from custody, the mother received
housing and support services from a community women’s center. The shelter
provided her with an advocate who helped her leave prostitution and establish a
stable and law-abiding lifestyle.
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The trial court also terminated the father’s parental rights. The father has not
appealed that ruling.
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In early July, the mother called the Longview Police Department to report that
her pimp had prevented her from seeing her child. She said that the pimp kept the
child in Houston and sent the mother to Longview, and he was forcing her to engage
in prostitution by withholding contact from the child. The Longview Police
Department contacted the Houston Police Department about the mother’s report.
HPD arrested Johnson, recovered Lara, and placed Lara in the custody of the
Department of Family and Protective Services (the Department). The Department
petitioned for child protection, conservatorship, and parental termination a few days
later.
The mother told the Child Protective Services caseworker that she could not
come to Houston and had no appropriate relative to care for the child, because her
own mother had attempted to sell her for drugs when she was an infant. The mother
also informed the caseworker that her aunt was caring for her older child. She refused
to provide the aunt’s information to the caseworker.
In mid-July, the trial court held a hearing and signed temporary orders. In late
August 2016, the trial court signed an order requiring the mother to comply with the
requirements of the family service plan developed for her by the Department.
Approximately one year later—when the mother was seven months’ pregnant
with her third child—she called police to her home. She reported that a man in her
apartment had engaged in an altercation with the third child’s father. When the
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police arrived, the mother claimed that the man, whom she believed to be a drug
dealer, had taken her keys and pushed his way into her apartment. The man told the
police a different story, informing them that he had been living in the home with the
mother for about two weeks and was helping to pay the rent.
The mother initially denied knowing the man, but eventually conceded that
she knew him. The police found men’s clothing in the bedroom. In the living room,
the officers found plastic sandwich bags containing marijuana, marijuana cigarettes,
and a jar containing the drug known as K2. When the officers asked the mother
about the drugs, she told them that the man put them there “possibly to set her up.”
The police obtained a search warrant and conducted further investigation.
Officers found more bags of marijuana hidden in a larger bag near the kitchen,
another bag of marijuana in the bedroom, and a scale with marijuana residue hidden
under a mattress. The officers did not arrest the mother.
The mother completed some of her family service plan requirements,
including her psychosocial assessment, her psychiatric assessment, and her
substance abuse assessment. At the termination hearing, the mother admitted that
she had not complied with family service plan requirements that she (1) refrain from
any involvement in criminal activity, (2) maintain a positive support system that is
safe, crime-free, drug-free, and alcohol-free, and (3) maintain housing that is safe,
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stable, and free of environmental hazards for a minimum of six consecutive months.
The mother denied using marijuana.
The random urine testing conducted during the case were negative for
marijuana and other illegal substances. However, the mother’s hair follicle drug-
test results showed high levels of marijuana exposure in July, August, and December
of 2016, as well as in March and June of 2017. During much of that time, the mother
was pregnant with her third child. The mother admitted to spending time around
people who use marijuana. She agreed that an apartment filled with drugs is not a
safe environment for a child.
By the November 2017 trial date, the mother had given birth to her third child.
She was living in an apartment with the child and the child’s father. The mother
admitted that her third child’s father has a CPS and a criminal history. She told the
trial court that she planned to stay with him. The mother testified that she no longer
worked as a prostitute and had a job providing health care assistance for the elderly.
The caseworker acknowledged that the mother currently has a stable lifestyle.
The mother has not held any job for longer than three months. The CPS
caseworker attested that the mother had three or four different jobs during the
pendency of the case. She opined that the mother was not always honest about why
she lost a job; when the caseworker followed up with the former employer, for
example, the employer gave a different reason for termination than the mother had.
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The Department moved Lara to a foster home in Dallas about eight months
before trial so that she would be closer to the mother. The foster family would like
to adopt Lara. With regard to the mother’s twice monthly court-scheduled visits,
the foster mother testified that the mother had missed three of her visits and
frequently had arrived late for other visits. The caseworker testified that Lara
appeared bonded to the foster parents and their two daughters; she appeared happier
and to be flourishing. The caseworker observed that the foster parents are dedicated
to providing for Lara’s emotional, developmental, and therapeutic needs. The foster
mother arranged for Lara’s early-childhood intervention services and follows all
recommendations.
The Department’s permanency report reflects that the mother’s therapist
recommended that Lara be reunited with her mother. The mother also provided the
court with a letter from her therapist. The therapist reported that the mother had
participated in 42 weekly sessions since she began receiving services from the
women’s center in July 2016. The therapist observed that the mother has shown
dedication to completing the CPS requirements for becoming reunited with Lara.
The mother’s victim advocate at the center also provided a letter in support of the
mother, reporting that the mother “has stayed away from her trafficker, and the
lifestyle that often accompanies sex trafficking. She is not perfect and has had some
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difficulties, and made some mistakes, but she seems to learn from them rather
quickly.”
The caseworker, on the other hand, opined that termination of mother’s
parental rights would be in child’s best interest. With respect to the mother, the
caseworker noted that she had not demonstrated and applied everything that she
learned in her sessions, observing that she “still socializes with people who have a
history with drugs,” and was living with a man—her youngest child’s father—who
has a CPS and a criminal history. The caseworker stated that, if the foster family
was permitted to adopt Lara, they would provide her with a nurturing environment
to grow up in and give her the kind of love she deserves.
The foster mother, a pediatric therapist, confirmed the family’s strong interest
in adopting Lara. She explained that Lara has been diagnosed with developmental
and cognitive delays, fine motor and speech delays, post-traumatic stress disorder,
and anxiety. To meet these special needs, Lara has the support of various
professionals, including a pediatrician, a neurologist, and an early-childhood
intervention team, as well as speech and occupational therapists. The foster mother
explained that her training in psychology and experience in providing therapeutic
services to other foster families and children with special needs help her ensure that
Lara has all the support services she needs, so that Lara can “at some point,
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hopefully, have a normal productive lifestyle.” In addition, the foster mother noted,
Lara has the support of the family and their large church community.
The foster mother testified that Lara had become extremely bonded to her
family. She calls the foster parents “mommy” and “daddy,” and is very attached to
her foster sisters. When Lara arrived at the foster home, she could say only three
words, but by the time of trial, she had a vocabulary of 48 words. The foster mother
observed that Lara has thrived in her home and has “grown so much.” The foster
mother expressed that she and her husband can provide Lara with the stability,
emotional resources, and therapeutic resources she needs. The foster mother further
testified that, as she has previously told the mother, the family would be willing to
have an open adoption as soon as the mother shows that she is committed to a stable
lifestyle, so that the mother and Lara can continue to have a relationship.
TERMINATION OF PARENTAL RIGHTS
A. Standard For Reviewing Challenges to the Termination of Parental
Rights
A parent’s rights to the “companionship, care, custody, and management” of
his or her child is a constitutional interest “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982);
accord In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). We therefore strictly scrutinize
termination proceedings and strictly construe the involuntary termination statutes in
favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Parental rights,
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however, are not absolute and “[t]he rights of parenthood are accorded only to those
fit to accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361
(Tex. 2003). Recognizing that a parent may forfeit his or her parental rights by their
acts or omissions, the primary focus of a termination suit is protection of the child’s
best interests. Id.
In a case to terminate parental rights by the Department under section 161.001
of the Family Code, the Department must establish, by clear and convincing
evidence, that (1) the parent committed one or more of the enumerated acts or
omissions justifying termination and, (2) termination is in the best interest of the
child. TEX. FAM. CODE § 161.001(b). Clear and convincing evidence is “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.” Id.
§ 101.007; see In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
B. Finding That Termination is in the Child’s Best Interest
As a matter of public policy, “the best interest of a child is usually served by
maintaining the parent-child relationship.” J.F.C., 96 S.W.3d at 294. In evaluating
an order terminating that relationship, however, the “protection of the child is
paramount” and “the rights of parenthood are accorded only to those fit to accept the
accompanying responsibilities.” A.V., 113 S.W.3d at 361 (quoting In re J.W.T., 872
S.W.2d 189, 195 (Tex. 1994)). Accordingly, appellate courts review the entire
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record to decide what is in the best interest of the child. In re E.C.R., 402 S.W.3d
239, 250 (Tex. 2013). In conducting this review, we are guided by the non-exclusive
list of factors set forth in Holley v. Adams. See 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors include (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 to promote the best
interest of the child, (6) the plans for the child by these individuals or by the agency
seeking custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent-child relationship
is not proper, and (9) any excuse for the acts or omissions of the parent. Id.
Evidence establishing one of the predicate acts under section 161.001(b)(1)
may be relevant to determining the best interests of the child, including
endangerment of the child. In re A.M., 495 S.W.3d 573, 581 (Tex. App.—Houston
[1st Dist.] 2016, pet. denied). The Department need not prove all of the best-interest
factors as a condition precedent to parental termination, “particularly if the evidence
was undisputed that the parental relationship endangered the safety of the child.
C.H., 89 S.W.3d 17, 27 (Tex. 2002), quoted in In re C.T.E., 95 S.W.3d 462, 466
(Tex. App.—Houston [1st Dist.] 2002, pet. denied).
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C. Analysis
The trial court determined that three statutory grounds justified termination of
the mother’s parental rights, finding that the mother (1) knowingly placed or allowed
the child to remain in conditions or surroundings which endangered her physical or
emotional well-being; (2) engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangered her physical or emotional well-
being; and (3) failed to comply with the requirements of her family service plan. See
TEX. FAM. CODE § 161.001(1)(D), (E), (O). The mother does not challenge these
predicate findings.
Lara has not lived with her mother since she was nine months old. At that
time, the mother left Lara with strangers for approximately three months while those
strangers forced the mother to prostitute herself in another city. The mother
eventually sought support in leaving prostitution and asked the authorities to
intervene and remove Lara from the situation, but not for a period of months and
after the mother’s arrest on a theft charge from years earlier.
At the time of trial, Lara was two years old. She had lived for eight months
with the foster family, who wish to adopt her. Her foster mother testified at length
concerning Lara’s emotional and physical needs, explaining that Lara is supported
by a team of professionals to address her PTSD and anxiety diagnoses as well as her
delays in communication, cognitive development, social, and emotional
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development, and motor skill development. Lara has made significant progress
since she has been in the foster home. The foster mother assured the court that Lara
will continue to receive all of the services she needs to help her become as
independent as possible in adulthood.
The mother testified that she would give Lara a mother’s love. She did not
address Lara’s need for services to address her developmental and cognitive delays.
The mother has had jobs, but none lasting longer than three months. According to
the caseworker, the mother did not acknowledge the reasons she lost the jobs, which
suggests an unwillingness to acknowledge and correct mistakes that have prevented
her from obtaining stable employment.
The mother identified her women’s center advocate as a source of support for
her. She did not name any family members or friends in her area to whom she looked
for support. The mother has lived around heavy users of marijuana, including during
the period she was to work on the family services plan and while pregnant with her
third child. She acknowledged that these living conditions did not provide a safe
and stable environment for a child. The mother did not express concern or anticipate
any difficulties in having Lara live with the father of her third child despite his
criminal and CPS history.
The foster mother described the typical weekday routine in her family, which
demonstrated a safe, stable, and enjoyable home life. Lara loves to play with her
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foster sisters and is considered a member of the family. The foster mother also
described the family’s church as providing a community of support for Lara. The
foster family has provided Lara with the nurture, stability, and support she needs.
The parents have expressed a desire to adopt Lara.
The trial court was faced with conflicting evidence about the child’s best
interests. It is undisputed that the mother placed Lara in physical and emotional
danger when Lara was in her care, but the mother herself was a victim of human
trafficking. Since that time, the evidence shows that the mother has made significant
progress toward living a stable and law-abiding life. The mother regularly visited
Lara during the family service plan period. The trial court also heard testimony about
the psychological effects on Lara of her life while in her mother’s care, the mother’s
lack of stable employment and housing, and her lack of awareness of the risk of drug
use in the home. Based on this evidence, the trial court reasonably could have
formed a firm conviction and belief that the mother has not achieved a safe and stable
environment for Lara.
In light of the entire record, we hold that factually sufficient evidence supports
the court’s firm conviction and belief that termination of the mother’s parental rights
was in the child’s best interest.
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CONCLUSION
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
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