in the Interest of A. D. N., Child v. Department of Family and Protective Services ( 2018 )

Opinion issued August 31, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00193-CV
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IN THE INTEREST OF A.D.N., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2017-00520J
MEMORANDUM OPINION
This is an appeal from a decree terminating a mother’s parental rights. The
mother contends that the evidence was legally and factually insufficient to support
the termination of her parental rights. Because the evidence is sufficient to support
the trial court’s decree, we affirm.
Background
Appellant’s daughter, A.D.N., who is the subject of this parental-termination
proceeding, was born in the spring of 2012. From infancy the child lived with her
maternal grandmother and her step-grandfather. In May 2016, the Department of
Family and Protective Services received a referral regarding the child. According to
the Department’s removal affidavit, the referral source stated that A.D.N. lived with
her grandparents because appellant had a “drug problem” and had been unable to
provide a stable home environment for her daughter. According to the affidavit’s
description of the referral allegations, appellant visited A.D.N. at the grandmother’s
home and sometimes spent the night there. In May 2016, however, for the first time,
appellant tried to remove A.D.N. from the grandmother’s home.
The referral alleged that appellant had shown up “high” at the grandmother’s
home several days in a row at 4:00 a.m., and she caused disturbances there. It was
reported that appellant then attempted, unsuccessfully, to remove A.D.N. from
school. Later, accompanied by law enforcement officers, appellant went to the
grandmother’s home and demanded that A.D.N. be given to her. Although the
grandmother had temporary custody of the child, and she informed the police that
appellant did not have a home and was in possession of drugs, appellant was
permitted to take A.D.N.
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The removal affidavit further reported that appellant then “got high on bars”
and left A.D.N. with a friend while she went out for the night. The friend contacted
the grandmother, who retrieved A.D.N. and took her home. It was further alleged
that appellant had a history of leaving A.D.N. with friends, but without necessary
supplies to care for the child. When A.D.N. was a few weeks old, appellant allegedly
left her with a friend and did not return for two weeks.
The Department conducted an investigation, and approximately nine months
after receiving the referral it filed a petition seeking temporary managing
conservatorship of A.D.N. and termination of parental rights if reunification with the
parents was found to be unsuitable. According to the removal affidavit, appellant
initially had agreed to complete services for substance abuse intervention and
parenting. She later insisted that she would not participate in any services, and she
told a caseworker she would change her telephone number if the Department tried
to contact her again. After a full adversary hearing, A.D.N. was placed under the
Department’s care, and the placement with her grandparents was continued during
the suit.
The Department developed a family service plan for appellant which the trial
court incorporated by reference in a status-hearing order, making the plan an order
of the court. The plan listed several tasks and services to be completed for
reunification with A.D.N. to occur. The plan stated that it was intended to help
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appellant provide a safe environment for A.D.N. within a specified time, and that if
she was unwilling or unable to provide that safe environment, parental and custodial
duties and rights could be restricted or terminated, or the child might not be returned.
The trial court further prohibited appellant from having visits with A.D.N. until she
tested negative for drugs. In a subsequent order, the trial court ordered appellant to
pay minimum-wage child support.
The Department’s petition to terminate parental rights was tried to the bench
in January 2018. Exhibits admitted into evidence included, among other documents,
family-service plans (including a summary of the referral received by the
Department as the “reason for child protective services involvement”), the removal
affidavit, a Children’s Crisis Care Center family evaluation, the Department’s final
permanency report to the court, results of several drug tests for both parents, and
documentation related to the criminal history of both parents.
T. Summerville was assigned as the caseworker during the suit, and the
Department called her as its sole witness at trial. Appellant testified, and she also
called the Child Advocates representative as a witness. A.D.N.’s caregivers, her
maternal grandmother and step-grandfather, were present in court, but they did not
testify.
The caseworker testified that A.D.N. was removed from appellant’s care in
May 2016. Appellant repeatedly tried to take A.D.N. from the grandmother, and the
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child was then removed from the grandmother’s home by police. The caseworker
explained that appellant then left A.D.N. with a friend, and the grandmother had to
pick up the child. She stated that appellant had completed most of the services
ordered in her family service plan. Due to Hurricane Harvey, appellant had been
delayed in beginning her individual counseling, and she had one session remaining.
Appellant was paying court-ordered child support for A.D.N. She told the
caseworker she was living with an uncle, and she provided an address. Appellant
also provided the caseworker with contact information for her employer, by whom
she was paid in cash. However, the caseworker was unable to verify appellant’s
employment.
The caseworker testified that appellant had tested positive for drugs several
times throughout the case. Appellant failed to appear for a court-ordered drug test in
February 2017, though she had not yet been served with the petition at that point.
Appellant failed to appear for a court-ordered test in April 2017. She gave birth to
her son, R.R., the day after she had been required to appear. At the time of trial, there
was another pending conservatorship case involving R.R.
The drug test results admitted into evidence showed that appellant tested
positive for cocaine based on hair follicle testing in May 2016, March 2017, and
June 2017. She tested positive for marijuana based on hair follicle testing in March,
June, July, and October 2017. The June 2017 test also was positive for
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benzoylecgonine, a primary metabolite of cocaine, and marijuana metabolites. The
July test was positive for marijuana metabolites. Appellant also tested positive,
based on a urinalysis in July 2017, for hydrocodone and hydromorphone. The
caseworker considered appellant’s drug use to be “endangering conduct.” She stated
that the result of the October 2017 test, which was positive for marijuana, showed
only exposure to the drug, and not ingestion. Nevertheless, she believed that
appellant’s exposure to that much marijuana was “not a positive thing.”
Results of subsequent hair follicle and urinalysis tests were negative for drugs,
and appellant contacted the caseworker to arrange visits with A.D.N. The
caseworker testified that she understood the court order to mean that visits could be
“considered” once appellant tested negative for drugs. She stated that she and
A.D.N.’s attorney ad litem “did not agree with the visitations,” so they denied
appellant’s request.
Records of appellant’s criminal history showed that she was convicted of
felony theft in 2011 and misdemeanor theft in 2012. In 2014, she was convicted of
a misdemeanor after a car accident in which she failed to stop and give her
information to the other driver. Later that year, she was convicted of misdemeanor
possession of alprazolam, a controlled substance. She was sentenced to ten days in
jail. The caseworker considered appellant’s criminal conduct and convictions to be
“endangering conduct.”
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The caseworker believed it would be in the best interest of A.D.N. for both of
her parents’ rights to be terminated, and for the child to be adopted by her maternal
grandmother. She explained that A.D.N. had been living with her grandmother since
she was an infant, and it was the only home she knew. A.D.N. had a great
relationship with the grandmother and step-grandfather, and with her teenage uncle
who also lived in the home. She called her grandmother “Mommy.” The caseworker
stated that A.D.N. was doing very well in school, and she was involved in several
extra-curricular activities. The grandmother’s home provided a safe and stable
environment for A.D.N., and there were no issues of drugs or criminality in the
home.
K. Neal of Child Advocates, A.D.N.’s court-appointed volunteer guardian ad
litem, also testified. Neal testified that A.D.N. was in a “great” placement with her
grandmother, and the home provided a “loving” and “stable” environment for the
child. A.D.N. was doing “very, very well.” A.D.N.’s brother, R.R., had been placed
with caregivers in the same neighborhood, which Neal agreed would be convenient
for future visits between the siblings.
However, Neal had filed a report with the trial court recommending that the
trial be continued. She explained that appellant had completed all of her services,
and her last two drug tests prior to trial had been negative. Neal additionally testified
that A.D.N. “loves her mother,” and she spoke “very highly” of appellant during her
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visits with the child. Nevertheless, Neal did not ask the court to place A.D.N. with
appellant. Rather, she testified that Child Advocates believed it would be in A.D.N.’s
best interest to remain with her grandparents while appellant continued to address
her substance-abuse issues. Neal recommended that appellant have weekly visits
with A.D.N., supervised by the grandmother, while the case was continued.
Appellant also testified. Other than one final therapy session scheduled for the
day after trial, she had completed her family-service plan. She produced a certificate
that showed she had completed eight weeks of parenting classes. She also produced
a certificate of completion for four months of outpatient treatment for substance
abuse, dated August 2017. Both certificates were admitted into evidence. Appellant
testified that she was seeing an aftercare counselor for drug abuse, and she intended
to continue treatment with the counselor.
Appellant conceded that she had started using drugs in high school. She
explained that she “made a mistake.” She initially testified that she had not used
drugs since July 2016. However, during cross-examination, she stated that she was
confused about the date, and she clarified that she had been sober since July 2017.
She stated that the July 2017 test had been positive for hydrocodone because she had
prescriptions for hydrocodone and oxycodone to treat pain stemming from a 2015
car accident. She stated that she no longer used the medications. Appellant was
aware that relapse rates for drug abusers are very high, and she understood that
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having a sponsor and attending support meetings was important to maintaining
sobriety.
At the time of trial, appellant was living with her uncle, and she testified that
his house was an appropriate place for A.D.N. to visit. She described her uncle as
being “like a father figure” to her, and she stated that she had not been in any
arguments with him. She further stated that she could rely on him if she needed
financial help. Appellant conceded that her uncle could ask her to leave his house at
any time. She stated that she would get a place of her own if he did ask her to leave.
Appellant testified that she had a job selling air conditioners, and she was paid
in cash. She had purchased a car for $1,500, and she had saved an additional $5,000.
She also had applied for disability benefits, but she had not yet been approved.
Appellant agreed that she was getting paid in cash for her sales job because she did
not want the income to negatively affect her pending disability claim or a pending
lawsuit. While the case was pending, appellant had paid $900 in child support for
A.D.N., and she was current on her payments. She had also purchased clothing and
shoes for A.D.N. in the past. Appellant testified that she was “not sure” how much
the grandmother spent each month to take care of A.D.N.
Appellant wanted the court to deny the petition to terminate her parental rights
with respect to A.D.N. She wanted “more time” in this case because she was “still
fighting” the case to maintain her parental rights to her son. A.D.N. had lived at the
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grandmother’s house “since she was about two,” and appellant also had lived there
with her for a period of time. Appellant believed that her own mother, A.D.N.’s
grandmother, did not believe she was trustworthy because when she lived there in
the past she “was messing up.” She testified, however, that she had learned to “be
specific and . . . responsible” and “not to do drugs.” She stated that she would ensure
that A.D.N. would not be in “harm’s way.”
Appellant stated that she did not want the grandmother to adopt A.D.N.
However, she also testified that she did not “have a problem” with it. Appellant
agreed that the grandparents did a “great job” parenting A.D.N. Despite testifying
that she did not want A.D.N. to be adopted by her grandmother, appellant also
affirmatively testified that it would be in the best interest of the child.
In its final order, the trial court found that appellant had committed predicate
acts of endangerment. See TEX. FAM. CODE § 161.001(b)(1)(D), (E). The court also
found that termination of appellant’s parental rights was in the best interest of
A.D.N. Based upon those findings, the trial court terminated appellant’s rights to
A.D.N. The trial court also terminated the parental rights of A.D.N.’s alleged father
and the “unknown father.” The Department was named sole managing conservator
of the child.
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Analysis
On appeal, appellant challenges the legal and factual sufficiency of the
evidence supporting termination of her parental rights under
sections 161.001(b)(1)(D) and (E). She also argues that the evidence was legally and
factually insufficient to support the finding that termination of her parental rights
was in A.D.N.’s best interest.
To terminate parental rights, the State must establish by clear-and-convincing
evidence that there is at least one predicate statutory ground for termination and that
the termination is in the child’s best interest. See TEX. FAM. CODE § 161.001(b); see
also In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002). 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.” TEX. FAM. CODE § 101.007.
To assess legal sufficiency of the evidence, we consider all of the evidence in
the light most favorable to the trial court’s finding and decide “whether a reasonable
trier of fact could have formed a firm belief or conviction that its finding was true.”
J.F.C., 96 S.W.3d at 266. We assume that any disputed facts were resolved in favor
of the finding as long as a reasonable factfinder could have done so. Id. If “no
reasonable factfinder could form a firm belief or conviction” that the matter on which
the State bears the burden of proof is true, then we “must conclude that the evidence
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is legally insufficient.” Id. In reviewing the factual sufficiency of the evidence, we
consider the entire record, including disputed evidence. Id. (citing In re C.H., 89
S.W.3d 17, 25 (Tex. 2002)). The evidence is factually insufficient if, in light of the
entire record, the disputed evidence that a reasonable factfinder could not have
resolved in favor of the finding is so significant that the factfinder could not
reasonably have formed a firm belief or conviction. Id.
I. Endangerment
The Department sought termination of appellant’s parental rights on grounds
of endangerment. See TEX. FAM. CODE § 161.001(b)(1)(D), (E). Only one predicate
finding under section 161.001(b)(1) is required to support a judgment of termination
when there is also a finding that termination is in the best interest of the child. In re
A.V., 113 S.W.3d 355, 362 (Tex. 2003); see also In re L.M., 104 S.W.3d 642, 647
(Tex. App.—Houston [1st Dist.] 2003, no pet.).
The predicate act of endangerment under paragraph (E) is satisfied if the
parent has “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.” TEX. FAM. CODE § 161.001(b)(1)(E). A child’s well-being is “endangered”
by exposure to loss or injury or when her emotional or physical health is put in
jeopardy. Tex. Dept. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It
is not necessary that the endangering conduct be directed at the child or that the child
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actually suffer injury. Id. To determine whether termination is justified, courts may
consider conduct that did not occur in the child’s presence and conduct that occurred
before and after the child was removed by the Department. Walker v. Tex. Dep’t of
Family & Protective Servs., 312 S.W.3d 608, 616–17 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied). Courts also may look to conduct that occurred before the
child’s birth. Id.; In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
A “parent’s use of narcotics and its effect on his or her ability to parent may
qualify as an endangering course of conduct.” J.O.A., 283 S.W.3d at 345. A parent’s
use of illegal drugs may support termination under section 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. Further, “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 K.C.F., No. 01–13–
01078–CV, 2014 WL 2538624, at *10 (Tex. App.—Houston [1 Dist.] 2014, no pet.)
(mem. op.).
The referral alleged that appellant showed up “high” at the grandmother’s
house and took A.D.N. It also alleged that appellant continued to use drugs that
evening before leaving the child with a friend. Appellant’s criminal records showed
that she was convicted for criminal possession of a controlled substance and
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sentenced to 10 days in jail. Thus, the evidence supported a conclusion that
appellant’s illegal drug use prior to the initiation of this suit resulted in risks of
impairment and imprisonment. See Walker, 312 S.W.3d at 617. After the suit was
initiated in February 2017, appellant continued to test positive for drugs. She tested
positive for cocaine in March and June 2017. She tested positive for marijuana in
March, June, and July 2017. Additionally, the result of a urinalysis, also from
July 2017, was positive for hydrocodone and hydromorphone. Appellant testified
that she had last used drugs in July 2017. However, evidence that appellant engaged
in illegal drug use while the termination suit was pending, despite knowing that she
was at risk of losing her rights to A.D.N., supported a conclusion that she engaged
in conduct that endangered the well-being of her child. See J.O.A., 283 S.W.3d at
345. Thus, the evidence was legally sufficient to support a finding of endangerment.
According to appellant’s own testimony she stopped using drugs in July 2017,
five months after the suit was initiated. With respect to the positive results for
hydrocodone and hydromorphone, appellant claimed to have valid prescriptions for
the drugs. However, she failed to produce any evidence to support that claim, and
there was evidence that she had a history of abusing prescription drugs. There was
no evidence to contradict the Department’s proof that appellant used illegal drugs
while the suit was pending. Considering the entire record, we hold that the evidence
also was factually sufficient to support the trial court’s finding.
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Because we have found that the evidence is both legally and factually
sufficient to support the predicate finding of endangerment under subsection (E), we
need not address the sufficiency of the evidence to support a finding under
subsection (D). See A.V., 113 S.W.3d at 362; L.M., 104 S.W.3d at 647. Accordingly,
we overrule appellant’s first issue.
II. Best interest of the child
There is a strong presumption that the best interests of a child are served by
maintaining the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). To determine whether termination of the parent-child relationship was in the
child’s best, we evaluate the evidence in light of the factors set out in Holley v.
Adams: (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 which may indicate that the existing parent-child relationship
is not a proper one; and (9) any excuse for the acts or omissions of the parent. 544
S.W.2d 367, 371–72 (Tex. 1976). The list of Holley factors is not exhaustive, nor is
evidence of all nine factors required to support a judgment of termination. Id. at 372.
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Evidence that establishes the predicate acts under section 161.001(b)(1) may be
relevant to determining the best interest of the child. See C.H., 89 S.W.3d at 27–28.
Desires and needs of the child.—A.D.N. was five years old at the time of
trial. She did not testify. The child advocate testified that A.D.N. cared for appellant,
but the child had lived with her grandparents most of her life. The evidence
established that A.D.N. had a strong bond and a good relationship with her
grandparents and with her uncle, who also lived in the home. A.D.N. was doing well
in school, and she participated in extra-curricular activities. In her appellate brief,
appellant concedes that the child’s “desire, presumably, would be to continue living
with and being raised by these maternal relatives.”
Endangerment of the child.—In determining the best interest of a child, a
factfinder may consider evidence of a parent’s past behavior that endangered the
well-being of the child and infer that the conduct may recur in the future if the child
is returned to the parent. See, e.g., Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied). Appellant’s illegal drug use prior to
the initiation of this suit resulted in impairment and imprisonment, and it supported
a conclusion that she engaged in conduct that endangered A.D.N.’s well-being.
Appellant contends that she completed her family-service plan in an attempt
to learn how to protect her child going forward. At trial, she testified that she had
learned to be “responsible,” and “not to do drugs.” Appellant’s final two drug tests
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prior to trial were negative for the presence of drugs. However, it was undisputed
that appellant continued to use illegal drugs while the case was pending. A parent’s
drug use can support a finding that termination is in the best interest of a child. See,
e.g., C.H., 89 S.W.3d at 28; In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston
[1st Dist.] 2012, no pet.).
The caseworker testified that there were no issues of drugs or criminality in
the grandmother’s home.
Programs available to promote the best interest of the child.—The evidence
established that appellant took advantage of the services and programs offered in her
family-service plan. There was no evidence about programs available to the
grandparents, nor was there evidence of any need for them.
Parental abilities, plans for the child, and stability of home.—Appellant
completed her family-service plan, including an 8-week parenting class. She testified
that she had learned to be “specific,” “responsible,” and “not to do drugs.” However,
as discussed above, the evidence established that appellant did use illegal drugs
while the case was pending, including while she was in an outpatient substance-
abuse treatment program, and while she was pregnant with R.R.
Appellant testified that she was living with her uncle, and that his house was
an appropriate place for A.D.N. to visit. The caseworker stated that appellant had
provided her an address for the uncle, but there was no further evidence about
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whether it was a stable or safe environment for a child. There was no evidence from
the uncle that he would permit A.D.N. to live at his home. Further, there was no
evidence that appellant paid rent to her uncle or that she had a lease. It was
undisputed that appellant could be asked to leave her uncle’s home at any time.
Appellant testified that she had a job selling “AC units,” and that she was paid
in cash. She stated that she had purchased her own car, and she also had saved several
thousand dollars, which she would use to get her own home if necessary. However,
appellant did not provide documentation to establish that she was employed or to
establish the amount of her income, and the caseworker testified that she was unable
to verify appellant’s employment. The Child Advocates representative stated that
she had spoken to appellant’s manager over the phone, but she never met him.
Appellant had filed a disability claim, which had not yet been approved. Her
testimony implied that information about her income could jeopardize her eligibility
or ability to receive disability benefits. Additionally, when asked to estimate how
much the grandmother spent to take care of A.D.N. on a monthly basis, appellant
responded that she did not know.
In contrast, it was undisputed that A.D.N.’s grandparents provided a loving,
stable, and safe environment for the child. The maternal grandmother planned to
adopt A.D.N.
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* * *
The Department sought termination of the parental rights of A.D.N.’s parents
so that the child could achieve permanency through adoption by her maternal
grandmother. The guardian ad litem believed it was in A.D.N.’s best interest to
remain with the grandparents, although she also advocated to continue the trial based
on appellant’s progress. Appellant herself testified that it would be in A.D.N.’s best
interest to be adopted by her grandmother.
Considering the Holley factors and reviewing all of the evidence in the light
most favorable to the trial court’s finding, we conclude that a reasonable trier of fact
could have formed a firm belief or conviction that termination of appellant’s parental
rights was in the best interest of A.D.N. Moreover, none of the disputed evidence
was so significant that the factfinder could not have formed such a firm belief or
conviction. We therefore conclude that the evidence was both legally and factually
sufficient to support termination of appellant’s parental rights to A.D.N.
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Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
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