in the Interest of S.S.B. and R.D., III, Children ( 2015 )

Affirmed and Memorandum Opinion filed September 15, 2015.
In The
Fourteenth Court of Appeals
NO. 14-15-00352-CV
IN THE INTEREST OF S.S.B. AND R.D., III, Children
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2014-00611J
MEMORANDUM OPINION
R.T.B. (“the mother”) appeals the trial court’s judgment terminating her
parental rights to her children, S.S.B. and R.D., III.1 R.D., Jr. (“the father”)
separately appeals the trial court’s judgment terminating his parental rights to R.D.,
III. We affirm the trial court’s judgment as to both the mother and the father.
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W.B., the father of S.S.B., executed an affidavit of voluntary relinquishment and the
trial court terminated his parental rights. See Tex. Fam. Code Ann. § 161.001(1)(K), (2) (West
2014). W.B. has not appealed the trial court’s judgment.
I. THE MOTHER’S APPEAL
Appellee, the Department of Family & Protective Services, moved to have
the parental rights of the mother terminated. See Tex. Fam. Code Ann. § 161.001
(West 2014). The trial court terminated the mother’s parental rights on the
grounds that the mother (1) knowingly placed or knowingly allowed the children to
remain in conditions or surroundings which endangered the children’s physical or
emotional well-being (section 161.001(1)(D)); (2) engaged in conduct or
knowingly placed the children with persons who engaged in conduct which
endangered the physical or emotional well-being of the children (section
161.001(1)(E)); (3) had her parent-child relationship terminated with respect to
another child based on a finding that the parent’s conduct was in violation of
paragraph (D) or (E) (section 161.001(1)(M)); and (4) failed to comply with the
provisions of a court order that specifically established the actions necessary for
her to obtain the return of the children (section 161.001(1)(O)). The trial court also
determined that it is in the children’s best interest to terminate the mother’s
parental rights (section 161.001(2)). Id. §§ 161.001(1)(D), (E), (M) & (O);
161.001(2).
The mother’s appointed counsel filed a brief in which counsel concludes the
appeal is wholly frivolous and without merit. The brief meets the requirements of
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional
evaluation of the record demonstrating why there are no arguable grounds to be
advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). The Anders
procedures are applicable to an appeal from the termination of parental rights when
an appointed attorney concludes that there are no non-frivolous issues to assert on
appeal. In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004,
no pet.).
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On June 18, 2015, a copy of the record and counsel’s brief were provided to
the mother and the mother was notified of the right to file a pro se response. See
Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991); In re D.E.S., 135
S.W.3d at 329–30. As of this date, no pro se response has been filed.
We have carefully reviewed the record and counsel’s brief and agree the
mother’s appeal is wholly frivolous and without merit. Further, we find no
reversible error in the record. A discussion of the brief would add nothing to the
jurisprudence of the state. Accordingly, we affirm the trial court’s judgment
terminating the mother’s parental rights to S.S.B. and R.D., III.
II. THE FATHER’S APPEAL
The Department also moved for termination of the father’s parental rights.
See Tex. Fam. Code Ann. § 161.001. Following a hearing, the trial court
terminated the father’s parental rights on the grounds that the father (1) knowingly
placed or knowingly allowed R.D., III to remain in conditions or surroundings
which endangered the child’s physical or emotional well-being (section
161.001(1)(D)); (2) engaged in conduct or knowingly placed R.D., III with persons
who engaged in conduct which endangered the physical or emotional well-being of
the child (section 161.001(1)(E)); and (3) failed to comply with the provisions of a
court order that specifically established the actions necessary for the father to
obtain the return of R.D., III (section 161.001(1)(O)). The trial court also
determined that it is in R.D., III’s best interest to terminate the father’s parental
rights (section 161.001(2)). Id. §§ 161.001(1)(D), (E) & (O); 161.001(2). On
appeal, the father asserts the evidence is legally and factually insufficient to
support the trial court’s judgment on one of the three statutory grounds for
termination. See id. § 161.001(1)(O). The father also challenges the trial court’s
decision that termination is in R.D. III’s best interest. See id. § 161.001(2).
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A. Burden of Proof and Standards of Review
Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section 161.001(1)
of the Family Code; and (2) termination is in the best interest of the child. Id. §
161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Clear and
convincing evidence is that 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 (West 2014); In re C.H.,
89 S.W.3d 17, 25–26 (Tex. 2002). This heightened burden of proof results in a
heightened standard of review. In re C.H., 89 S.W.3d at 26 (“[T]he appellate
standard for reviewing termination findings is whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction about the truth of the
State’s allegations.”); see also In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).
In a legal-sufficiency review, we consider all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002). This means we must assume the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We
disregard all evidence that a reasonable factfinder could have disbelieved or found
to have been incredible, but we do not disregard undisputed facts, regardless of
whether they support the finding. Id. If we determine no reasonable factfinder
could form a firm belief or conviction the matter to be proven is true, we must
conclude the evidence is legally insufficient. Id.
In a factual-sufficiency review, we give due consideration to evidence the
factfinder reasonably could have found to be clear and convincing. Id. Our inquiry
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is whether the evidence is such that a factfinder reasonably could form a firm
belief or conviction about the truth of the Department’s allegations. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that evidence in favor of its finding. Id. If, in light of the entire
record, the disputed evidence is so significant that the factfinder could not
reasonably have formed a firm belief or conviction, we must find the evidence is
factually insufficient. Id.
B. The Evidence Relating to the Father
Test results were admitted into evidence reflecting the father tested positive
for drugs on January 22, 2014, February 18, 2014, April 1, 2014, July 15, 2014,
and October 28, 2014. Trial was held in March 2015.
The father testified that he was 22 years of age at the time of trial. He was
present at the hospital when R.D., III was born. The father was currently living
with his grandmother, where he had lived since 2011. He testified that her house
had room for his son and that his grandmother was agreeable to R.D., III living in
her home.
The father testified that when he was using drugs, his “drug of choice” was
powdered cocaine, and he smoked marijuana and PCP. The father admitted that he
chose drugs over his child. According to the father, he used drugs for the last time
on the weekend before December 1, 2014. He had used marijuana since he was
fifteen years old and cocaine since he was seventeen years old. In December 2014,
the father entered a rehabilitation facility for the first time for a thirty-day inpatient
program. He testified that he has attended over forty Narcotics Anonymous
meetings since his release on January 12, 2015, from rehabilitation. At the time of
trial, the father was participating in outpatient therapy. He was attending a relapse
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prevention program twice a week, and had individual counseling once a month.
According to the father’s trial testimony, he had not used drugs for 109 days.
When asked if he would agree that he had not successfully completed his
family plan of service as of trial, the father said, “I am completing my service.” He
testified that he finished individual therapy.
The father had enrolled at Houston Community College. He began
attending classes the month before trial. He testified that he was not in contact
with his peers who were involved in drugs. The father spoke to his sponsor daily.
At the time of trial, the father was working at the Goodyear Chemical Plant
five days a week, from 7:00 a.m. to 3:30 p.m. The father’s stated plan for child-
care while he worked was, “I have my mother, as a support system; my
grandmother and my aunt; and I have uncles, alter their schedules in order to help
me get my son back.” The father’s plan for child-care while he attended meetings
was for his sister to care for R.D., III. The father testified he has attended all
scheduled visits with R.D., III and has completed parenting classes. He brought
clothes, toys, and shoes to R.D., III and S.S.B.
The father testified that he would protect R.D., III from the child’s mother.
The mother has attempted to contact the father but he has not responded, and the
father changed his phone number. The father also testified that during pendency of
this case, he lived with the mother.
The father did not provide the names of any of the additional family
members so R.D., III could be placed with family. He said it was because he had
to ask the individuals first. No names or information about these additional family
members were provided at trial. There was evidence that there were relatives who
wanted to take R.D., III but the Department desired to keep the children together.
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The caseworker testified the children were currently placed together in a
foster home that wanted to adopt both children. The children had been in care of
the Department since February 2014. Initially, they were placed with the father’s
mother but were removed for medical neglect. R.D., III had not been to the doctor
and had not received his immunization shots. S.S.B.’s skin was covered with sores
from acute eczema and she was not being cared for properly. The father’s mother
wanted S.S.B. moved because she could not handle the child’s behavior. Both
children were moved.
The caseworker testified that the father had a drug test the month before trial
that was negative. The caseworker also testified that the father tested positive for
drugs throughout the pendency of this case. According to the caseworker, the
father’s conduct endangered R.D., III. She testified that other conduct also
endangered R.D., III , namely the father’s request that the mother’s visits be again
joined with his visits. Because of the mother’s conduct during visits, the visits had
been separated. When joint visits were reinstituted, the mother’s conduct still was
problematic but the father only apologized.
The caseworker testified that the father failed to complete all the
recommendations from his psychosocial evaluation, failed to maintain six months
of stable employment or housing, and had not met the requirement to attend ninety
Narcotics Anonymous meetings in ninety days. The caseworker did not believe
the father had successfully completed his family plan of service. The Department
asked the trial court to terminate the father’s parental rights based on his
endangering conduct of continuing to test positive for drugs throughout the
pendency of this case and his failure to successfully complete his family plan of
service.
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The caseworker also testified that it was in R.D., III’s best interest that the
father’s rights be terminated. According to the caseworker, R.D., III needs
stability. The child’s foster parent is willing to adopt. The caseworker testified
that R.D., III and S.S.B. are very bonded, “only know each other through this
whole year of being in care,” and are doing well. The caseworker stated that it is
in the children’s best interest to remain together. The caseworker stated R.D., III
also has eczema; the child is getting good care. Both children are anemic and they
are in a home with foster parents who will monitor their condition. R.D.,III carries
the trait for sickle cell anemia. The caseworker testified the physical and
emotional needs of both children are being met and they are in a stable home that
is drug-free and safe.
The caseworker acknowledged that since the father left rehabilitation he had
tested negative for drugs. The caseworker agreed the father’s act of changing his
phone number to protect himself from the mother signaled progress. Noting the
recency of the father’s employment, the caseworker testified the father had not met
the requirement of his family service plan for stable housing and employment. The
caseworker agreed the father was attending Narcotics Anonymous meetings but the
caseworker testified that he does not attend daily. To her knowledge, the father
complied with court orders and attended all scheduled visits with the child. She
acknowledged that the father brought the children toys and clothing and agreed
that the father was attentive and loving toward them.
The caseworker was asked, “You’ve never made any effort to return [R.D.,
III] to the father, correct?” She replied “Yes, we made efforts. We kept sending
him and referring him for services. We referred him for substance abuse therapy.
We referred him for the substance abuse assessment. We referred him for
substance abuse individual therapy -- . . . Those were our efforts to help him
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complete his family plan of service and in the hopes of him regaining custody of
his child.”
The caseworker was aware the father voluntarily entered rehabilitation and
he gave her a copy of his certificate of completion. The father has kept her
apprised of his attendance at Narcotics Anonymous meetings. She knew the father
was actively participating in an outpatient relapse prevention program and the
caseworker had received an e-mail from the father’s outpatient counselor
indicating the father had acquired relapse prevention skills.
C. Statutory Grounds
The father has not challenged the sufficiency of the evidence to support
termination of his parental rights under subsections (D) and (E). Because the
judgment could be upheld on these unchallenged grounds, we uphold the judgment
concerning the statutory grounds for termination and do not address the father’s
challenge to the sufficiency of the evidence under subsection (O). See Fletcher v.
Dep’t of Family & Protective Servs., 277 S.W.3d 58, 64 (Tex. App.—Houston [1st
Dist.] 2009, no pet.) (citing Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993);
Perez v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427, 433–34
(Tex. App.—El Paso 2004, no pet.)). See also Conti v. Texas Dept. of Family &
Protective Services, 01-10-00185-CV, 2011 WL 286143, at *4 (Tex. App.—
Houston [1st Dist.] Jan. 27, 2011, pet. denied) (mem. op.). Accordingly, we
overrule the father’s first issue.
D. Best Interest of the Child
In his second issue the father challenges the legal and factual sufficiency of
the evidence to support the trial court’s finding that termination of his parental
rights is in R.D., III’s best interest. A strong presumption exists that the best
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interest of the child is served by keeping the child with the child’s natural parent,
and the burden is on the Department to rebut that presumption. In re U.P., 105
S.W.3d 222, 230 (Tex. App.–Houston [14th Dist.] 2003, pet. denied). Proof of
acts or omissions under section 161.001(1) is probative of the issue of the child’s
best interest. 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 at 230; see
also Tex. Fam. Code Ann. § 263.307(b) (West 2014) (listing factors to consider in
evaluating parents’ willingness and ability to provide the child with a safe
environment). A finding in support of “best interest” does not require proof of any
unique set of factors, nor does it limit proof to any specific factors. See Holley, 544
S.W.2d at 371–72.
We begin with the presumption that R.D., III’s best interest is served by
keeping him with his natural parent. See In re D.R.A., 374 S.W.3d 528, 533 (Tex.
App.—Houston [14th Dist.] 2012, no pet.). We also presume that prompt and
permanent placement of the child in a safe environment is in the child’s best
interest. See Tex. Fam. Code Ann. § 263.307(a) (West 2014).
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1. Needs of and Danger to the Child
With regard to R.D., III’s present and future emotional and physical needs,
and the present and future emotional and physical danger to R.D., III, the record
reflects the father used drugs both before and after the child’s birth. By the
father’s own admission, he did not enter rehabilitation until December 2014, a year
after R.D., III came into the Department’s care and only three months before trial.
The father continued to use drugs during that year and repeatedly tested positive
for drugs. The caseworker testified that the father’s drug use endangered R.D., III.
Accordingly, this factor weighs in favor of the trial court’s finding.
2. 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 239, 249 (Tex. 2013). The caseworker testified the father
failed to successfully complete his family plan of service. Although the father
argues he substantially complied with the service plan, his repeated positive drug
tests establish otherwise. Further, the father did not obtain employment until after
leaving rehabilitation in January 2014. The caseworker testified this employment
did not satisfy the requirement for stable employment as it was too recent. We
therefore conclude this factor weighs in favor of the trial court’s finding.
3. Child’s Desires and Proposed Placement
Because R.D., III was approximately fourteen months old at the time of trial,
he was unable to express his desires with respect to a preferred placement. 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 in the current placement, and
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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 In re J.N.R., 982 S.W.2d 137, 143
(Tex. App.–Houston [1st Dist.] 1998, no pet.). A child’s need for permanence
through the establishment of a “stable, permanent home” has been recognized as
the paramount consideration in the best-interest determination. See In re K.C., 219
S.W.3d 924, 931 (Tex. App.–Dallas 2007, no pet.). Therefore, evidence about the
present and future placement of the child is relevant to the best-interest
determination. See In re C.H., 89 S.W.3d at 28.
We note that the father never had care of R.D., III. Although the father
testified he had family members who would support him in caring for the child, the
father never identified those persons as placement options while the case was
pending. No information about those family members was ever provided. The
father’s plan for child-care included his mother, from whose care R.D., III
previously had been removed for medical neglect. The father continued to live
with R.D., III’s mother during part of the time this case was pending and they both
continued using drugs during that period. In the three months preceding trial, the
father resided at a rehabilitation facility for thirty days and then lived with his
grandmother. The father had not maintained stable housing for six months.
The caseworker testified R.D., III is currently in a foster home with his half-
sister and the foster parent would like to adopt both children. The record reflects
R.D., III is bonded to his half-sister. The foster home is drug free, safe, and all of
R.D., III’s physical and emotional needs are being met. This factor weighs in
favor of the trial court’s finding.
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4. Parenting Abilities and Family Support
The father testified that he completed parenting classes, attended all
scheduled visits with R.D., III, and brought items for the children when he would
visit. The caseworker testified the father was loving and attentive at visits.
According to the father, he has his mother, grandmother, aunt, and uncles as family
support. None of these family members were suggested as placement options
while the case was pending. Although both children initially were placed with the
father’s mother, they were removed for medical neglect and she wanted S.S.B.
moved because she could not handle the child’s behavior. Accordingly, this factor
also weighs in favor of the trial court’s finding.
Applying the applicable Holley factors to the evidence, we conclude that
legally and factually sufficient evidence supports the trial court’s finding that
termination of the father’s rights is in the best interest of R.D., III. See In re S.B.,
207 S.W.3d 877, 887–88 (Tex. App.–Fort Worth 2006, no pet.) (considering the
parent’s drug use, inability to provide a stable home, and failure to comply with a
family service plan in holding the evidence supported the best-interest finding).
Based on the evidence presented, the trial court reasonably could have formed a
firm belief or conviction that terminating the father’s rights was in R.D., III’s best
interest so that the child could promptly achieve permanency through adoption by
a foster family. 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). Therefore, we overrule the father’s second issue
and affirm the trial court’s judgment terminating the father’s parental rights to
R.D., III.
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The judgment of the trial court is affirmed.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
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