in the Interest of B.R., Children , 456 S.W.3d 612 ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-14-00599-CV
IN THE INTEREST OF B.R., A.R., X.R., and J.R., Children
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2013-PA-02347
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: January 7, 2015
AFFIRMED IN PART; REVERSED AND RENDERED IN PART
This is an accelerated appeal from the trial court’s judgment terminating appellant’s
parental rights to her four children, B.R., A.R., X.R., and J.R.1 On appeal, appellant asserts the
evidence is insufficient to support a finding that termination is in the children’s best interest. We
agree.
BACKGROUND
Appellant did not appear at the termination hearing, and the only witness who testified was
Nicole Curel, a supervisor with the Texas Department of Family and Protective Services (“the
Department”). Curel began monitoring the case when the children first came into the Department’s
temporary custody in October 2013. Curel stated the Department received a referral in September
1
The children’s father relinquished his paternal rights.
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2013 for neglectful supervision by both parents of one of the children, B.R. The parents were
parked near the Malt House when police approached their car and discovered approximately eight
grams of heroin in the vehicle. B.R. was sitting in his father’s lap in the car at the time, and
appellant and another male were also in the car. The record contains no information about the
location of the other three children at the time.
Following this incident, it appears all four children were initially placed with a maternal
aunt who did not have the necessary living arrangements to provide care for the children long term.
The children were later placed with their maternal grandmother on July 2, 2014. As of the August
14, 2014 termination hearing, two of the children were three years old and the other two were two
years old. When asked if previous Department “history” with the grandmother would be a barrier
to permanency for the children with the grandmother, Curel responded “It was 14 years ago, so I
don’t believe so.” She believed the grandmother would be eligible to adopt the children, and it
was in their best interest to remain in the grandmother’s home.
Curel said she had no recent contact with appellant, but after viewing appellant’s Facebook
page, Curel believed appellant was “in a relationship with a new individual who smokes marijuana
and has guns.” Curel also said appellant had missed “a couple” of visits with her children in July
and August. Based on the visits appellant had with her children, Curel did not believe appellant
had maintained significant contact with them because she had missed several visits throughout the
pendency of the case. Curel said appellant had done “nothing” to demonstrate she could provide
the children with a safe and stable home, although the Department had made reasonable efforts to
work with her. According to Curel, appellant completed some of the requirements of her service
plan; e.g., parenting and empowerment classes. Curel said appellant did not complete anger
management classes or participate in a psychological evaluation, and she had started, but not
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completed, individual counselling. Appellant also failed to appear for drug tests and a hair follicle
test.
Curel believed appellant’s behavior in September 2013 endangered B.R.’s well-being. She
was not asked whether appellant’s behavior in September 2013 endangered the well-being of the
other three children. Curel said appellant had a prior criminal history in that she was arrested “for
theft 50 to 500 and robbery second degree felony” in April. 2 Curel said appellant has done nothing
to rectify the situation or demonstrate she has made any substantial changes in her life. However,
Curel admitted she had no contact with appellant, although the Department caseworker had contact
in mid-July.
Following the termination hearing, the trial court terminated appellant’s parental rights
based upon finding she (1) knowingly placed or knowingly allowed the children to remain in
conditions or surroundings that endangered the physical or emotional well-being of the children;
(2) engaged in conduct or knowingly placed the children with persons who engaged in conduct
that endangered the physical or emotional well-being of the children; and (3) 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. TEX. FAM. CODE ANN. § 161.001(1)(D),(E),(O) (West 2014).
BEST INTEREST
A trial court may order termination of the parent-child relationship only if the court finds
by clear and convincing evidence one or more statutory grounds for termination and that
termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001(1), (2); § 161.206(a).
“‘Clear and convincing evidence’ means the measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
2
Curel did not state the year of the arrest, the details of the offenses, or whether the arrest resulted in a conviction.
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established.” TEX. FAM. CODE § 101.007. We review the sufficiency of the evidence to support
the termination of parental rights under the well-established standards for legal and factual
sufficiency of the evidence. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). There is a strong
presumption that keeping a child with a parent is in the child’s best interest. In re R.R., 209 S.W.3d
112, 116 (Tex. 2006). However, when the court considers factors related to the best interest of the
child, “the prompt and permanent placement of the child in a safe environment is presumed to be
in the child’s best interest.” TEX. FAM. CODE § 263.307(a). In determining whether a child’s
parent is willing and able to provide the child with a safe environment, the court should consider:
(1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-
home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4)
whether the child has been the victim of repeated harm after the initial report and intervention by
the Department or other agency; (5) whether the child is fearful of living in or returning to the
child’s home; (6) the results of psychiatric, psychological, or developmental evaluations of the
child, the child’s parents, other family members, or others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the child’s family or others who
have access to the child’s home; (8) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home; (9) whether the perpetrator of the harm to
the child is identified; (10) the willingness and ability of the child’s family to seek out, accept, and
complete counseling services and to cooperate with and facilitate an appropriate agency’s close
supervision; (11) the willingness and ability of the child’s family to effect positive environmental
and personal changes within a reasonable period of time; (12) whether the child’s family
demonstrates adequate parenting skills; and (13) whether an adequate social support system
consisting of an extended family and friends is available to the child. Id. § 263.307(b).
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Courts also may apply the non-exhaustive Holley factors to shape their analysis. Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These include, but are not limited to, (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 a proper one, and (9) any excuse
for the acts or omissions of the parent. Id.
Finally, evidence that proves one or more statutory grounds for termination may constitute
evidence illustrating that termination is in the child’s best interest. In re C.H., 89 S.W.3d 17, 28
(Tex. 2002) (holding same evidence may be probative of both section 161.001(1) grounds and best
interest, but such evidence does not relieve the State of its burden to prove best interest). A best-
interest analysis may consider circumstantial evidence, subjective factors, and the totality of the
evidence as well as the direct evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio
2013, pet. denied). A trier of fact may measure a parent’s future conduct by his past conduct and
determine whether termination of parental rights is in the child’s best interest. Id.
A. Section 263.307(a) Factors
Other than the ages of the four children, no evidence was adduced regarding any physical
or mental vulnerabilities of any of the four children. The record contains no evidence of the
frequency and nature of out-of-home placements, if any, which may have occurred before
September 2013. Except for Curel’s testimony that B.R. was sitting on his father’s lap in the car
when the police found the heroin, there is no evidence of the magnitude, frequency, and
circumstances of the harm, if any, to any of the four children. There is no evidence in the record
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that any of the four children have been the victim of repeated harm after the initial report and
intervention by the Department, or whether any of the children have expressed any fear of living
in or returning to their home. Curel stated appellant began but did not complete individual
counseling; however, there is no other evidence regarding whether the children, their grandmother,
other family members, or others who have access to the children’s home have undergone
psychiatric, psychological, or developmental evaluations. Curel testified appellant was a
passenger in the car when the heroin was discovered, she has not participated in any drug
treatment, 3 she failed to appear for drug and hair follicle tests, and she is believed to be “in a
relationship with a new individual who smokes marijuana and has guns” based on Curel’s viewing
of appellant’s Facebook page. However, there is no evidence of a history of abusive or assaultive
conduct by the children’s family or others who have access to the children’s home.
Curel stated the grandmother had a “history” with the Department, but she was not asked
to explain the “history.” The children had been with their grandmother for less than two months
before the termination hearing commenced, and Curel offered only the conclusory statement that
it was in the children’s best interest to remain with the grandmother. There is no evidence of any
willingness and ability of the children’s family to seek out, accept, and complete counseling
services, to cooperate with and facilitate the Department’s close supervision, the willingness and
ability of the children’s family to effect positive environmental and personal changes within a
reasonable period of time, whether the grandmother demonstrates adequate parenting skills, and
whether an adequate social support system consisting of an extended family and friends is
available to the children.
3
Curel admitted drug treatment was not included in appellant’s service plan.
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B. The Holley Factors
We will assume the children are too young to express their desires. Except for Curel’s
conclusory statements that placement with the grandmother was “working out” for the children,
there is no evidence of the emotional and physical needs of any of the children now and in the
future, the emotional and physical danger to the children now and in the future, the parental
abilities of the grandmother seeking custody, the programs available to assist the grandmother to
promote the best interest of the children, the grandmother’s plans for the children, or the stability
of the grandmother’s home. Other than evidence that appellant was a passenger in the car when
the heroin was discovered, she is “believed” to be “in a relationship with a new individual who
smokes marijuana and has guns” based on Curel’s viewing of appellant’s Facebook page, and
Curel’s testimony that appellant missed visitations, there is no other evidence of any acts or
omissions by the appellant that may indicate the existing parent-child relationship is not a proper
one. There is no evidence of any excuse for appellant’s acts or omissions because appellant did
not appear at trial to testify, the caseworker did not appear at trial to testify, and Curel admitted
she had had no contact with appellant.
C. Other Considerations
The evidence proving one or more statutory grounds for termination consisted of
appellant’s failure to complete the entirety of her service plan and the single incident in September
2013—and that incident involved only one of the four children. See In re C.H., 89 S.W.3d at 28
(such evidence does not relieve the State of its burden to prove best interest). Other than Curel’s
testimony, no other witness testified and no evidence was admitted. 4 Appellant demonstrated
4
The trial court took judicial notice of its files. “A trial court may take judicial notice of its own records in matters
that are generally known, easily proven, and not reasonably disputed.” In re J.E.H., 384 S.W.3d 864, 870 (Tex.
App.—San Antonio 2012, no pet.). Therefore, a court may take judicial notice that a pleading has been filed in the
case, that it has signed an order, or of the law of another jurisdiction. Id. Thus, in this case, the trial court could have
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some interest in the proceedings because she appeared at every hearing, except the first trial setting
of July 28, 2014, which was reset to August 14, 2014 and at which she also did not appear. The
trial court stated on the record that it was “very concerned about why [appellant] appeared at all
the prior hearings, but not today . . . .” Curel testified B.R. was in the car when the heroin was
discovered by the police. However the record contains no evidence about or even a mention of
the other three children except their names and birthdates. Curel’s agreement that it was in the
children’s best interest to terminate appellant’s parental rights and it was in their interest to “move
on” was conclusory. See In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no
pet.) (holding that “conclusory testimony, such as the caseworker’s, even if uncontradicted does
not amount to more than a scintilla of evidence[, a]nd, ‘[a]lthough [a parent’s] behavior may
reasonably suggest that a child would be better off with a new family, the best interest standard
does not permit termination merely because a child might be better off living elsewhere.’”).
CONCLUSION
After reviewing the entire record, we conclude the State did not meet its burden to establish
by clear and convincing evidence that termination of appellant’s parental rights to her four children
is in the children’s best interest. Therefore, we reverse that portion of the trial court’s judgment
terminating appellant’s parental rights and render judgment denying the State’s petition for
termination of appellant’s parental rights. We affirm that portion of the trial court’s judgment
terminating the children’s father’s parental rights.
properly taken judicial notice that it signed an order adopting the family service plan and what the plan listed as the
necessary requirements appellant was required to complete before her children would be returned to her. Id. Here, in
addition to various pleadings and orders, the clerk’s record contains only a September 25, 2013 affidavit attached to
the State’s petition for termination, and a copy of the Family Service Plans for the parents. A court may not take
judicial notice of the truth of allegations in its records. See id. (emphasis added) (holding trial court could not take
judicial notice of allegations caseworker made in family service plan or in affidavit attached to Department’s petition).
Therefore, the allegations contained in the affidavit and appellant’s service plan cannot support the termination order.
Accordingly, we are limited to reviewing only Curel’s testimony at the termination hearing.
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Because appellant’s challenge to the Department’s Family Code section 153.131
conservatorship was not subsumed within her appeal of the termination order and was not
challenged on appeal, we also affirm the trial court’s appointment of the Department as the
managing conservator of the children pursuant to section 153.131. See In re J.A.J., 243 S.W.3d
611, 617 (Tex. 2007) (explaining procedure to be followed by a parent, the Department, and the
trial court when a judgment terminating parental rights is reversed by the court of appeals but the
Department’s conservatorship pursuant to section 153.131 is affirmed); see also In the Int. of
R.S.D., No. 04-13-00665-CV, 2014 WL 4335354, at *4, n.5 (Tex. App.—San Antonio Sept. 3,
2014, no pet.).
Sandee Bryan Marion, Chief Justice
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