in the Interest of O.B. Jr. ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00787-CV
IN THE INTEREST OF O.B. Jr., E.D.C., D.R.C., E.H.C., and T.M.C., Children
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-02169
Honorable H. Paul Canales, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: March 28, 2018
AFFIRMED
Appellant M.G. appeals the trial court’s order terminating her parental rights to her children
O.B. Jr., E.D.C., D.R.C., E.H.C., and T.M.C. 1 M.G. asserts the evidence is neither legally nor
factually sufficient for the trial court to have found by clear and convincing evidence that
terminating her parental rights is in her children’s best interests.
Having reviewed the evidence, we conclude it is legally and factually sufficient to support
the findings, and we affirm the trial court’s order.
1
To protect the minors’ identities, we refer to the mother and the children using aliases. See TEX. R. APP. P. 9.8.
04-17-00787-CV
BACKGROUND 2
In December 2015, the Department of Family and Protective Services received a report
that M.G.’s newborn child tested positive at birth for marijuana. The Department offered M.G.
services to help her parent her six children, but she did not take advantage of the services. In the
ensuing months, the Department received several more reports regarding M.G. The reports
included domestic violence in the home, unsanitary home conditions, and drug abuse. In May
2016, M.G. tested positive for methamphetamines, and she continued to resist receiving services.
In September 2016, M.G. was stopped by a police officer while driving with her children,
and she was detained for outstanding warrants. When no suitable family members could be located
to take the children, the Department took them and sought their removal. The Department initiated
a service plan for M.G., but she did not complete the plan. On November 14, 2017, after a bench
trial, the trial court terminated M.G.’s parental rights to five of her children, and she appeals.
EVIDENCE REQUIRED TO TERMINATE PARENTAL RIGHTS
If the Department moves to terminate a parent’s rights to a child, the Department must
prove by clear and convincing evidence that the parent’s acts or omissions met one or more of the
grounds for involuntary termination listed in section 161.001(b)(1) of the Family Code, and
terminating the parent’s rights is in the best interest of the child. TEX. FAM. CODE ANN.
§ 161.001(b) (West Supp. 2017); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). The same evidence
used to prove the parent’s acts or omissions under section 161.001(b)(1) may be used in
determining the best interest of the child under section 161.001(b)(2). In re C.H., 89 S.W.3d 17,
28 (Tex. 2002); In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.); see
2
Because M.G. is the only appellant, we limit our recitation of the facts to those that pertain to M.G. or the children.
-2-
04-17-00787-CV
also TEX. FAM. CODE ANN. § 161.001(b). The trial court may consider a parent’s past deliberate
conduct to infer future conduct in a similar situation. D.M., 452 S.W.3d at 472.
STANDARDS OF REVIEW
A. Legal Sufficiency
When a clear and convincing evidence standard applies, a legal sufficiency review requires
a court to “‘look at 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.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting J.F.C., 96 S.W.3d at 266). If the court
“‘determines that [a] reasonable factfinder could form a firm belief or conviction that the matter
that must be proven is true,’” the evidence is legally sufficient. See id. (quoting J.F.C., 96 S.W.3d
at 266).
B. Factual Sufficiency
Under a clear and convincing standard, evidence is factually sufficient if “a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s allegations.” C.H., 89
S.W.3d at 25; accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must consider “whether
disputed evidence is such that a reasonable factfinder could not have resolved that disputed
evidence in favor of its finding.” J.F.C., 96 S.W.3d at 266; accord H.R.M., 209 S.W.3d at 108.
-3-
04-17-00787-CV
BASES FOR TERMINATION
A. M.G.’s Course of Parental Conduct
The trial court found by clear and convincing evidence that M.G. failed to comply with her
court-ordered service plan. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O). 3 On appeal, M.G.
does not challenge the trial court’s statutory ground finding.
B. Best Interests of the Children
Instead, M.G. challenges the sufficiency of the evidence supporting the trial court’s finding
that terminating her parental rights is in her children’s best interests. See id. § 161.001(b)(2). We
briefly review the law pertaining to determining the best interests of the children.
1. Statutory Factors
The Texas legislature codified certain factors courts are to use in determining the best
interest of a child:
(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;
(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;
3
The Family Code authorizes a court to terminate the parent-child relationship if, inter alia, it finds by clear
and convincing evidence that the parent’s acts or omissions met certain criteria. See TEX. FAM. CODE ANN.
§ 161.001(b). Here, the trial court found M.G.’s conduct met the following criteria or ground:
(O) failed to comply with the provisions of a court order that specifically established the actions
necessary for the parent to obtain the return of the child who has been in the permanent or
temporary managing conservatorship of the Department of Family and Protective Services for
not less than nine months as a result of the child’s removal from the parent under Chapter 262
for the abuse or neglect of the child.
Id. § 161.001(b)(1)(O).
-4-
04-17-00787-CV
(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.
TEX. FAM. CODE ANN. § 263.307(b); see In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435,
at *4 (Tex. App.—San Antonio Apr. 29, 2015, no pet.) (mem. op.) (citing In re A.S., No. 04-14-
00505-CV, 2014 WL 5839256, at *2 (Tex. App.—San Antonio Nov. 12, 2014, pet. denied) (mem.
op.)); In re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.).
2. The Holley Factors
The Supreme Court of Texas identified the following factors to determine the best interest
of a child in its landmark case Holley v. Adams:
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
...
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-
child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (footnotes omitted); accord In re E.N.C.,
384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors); see also TEX. FAM. CODE ANN.
-5-
04-17-00787-CV
§ 263.307(b) (listing statutory factors for “determining whether the child’s parents are willing and
able to provide the child with a safe environment”).
Applying each standard of review and the applicable statutory and common law factors,
we examine the evidence pertaining to the best interests of the children. See TEX. FAM. CODE ANN.
§§ 161.001(b)(2), 263.307(b); E.N.C., 384 S.W.3d at 807; J.F.C., 96 S.W.3d at 284.
EVIDENCE OF BEST INTERESTS OF THE CHILDREN
The one-day bench trial on November 14, 2017, concerned M.G., five of her children, and
their two fathers. The trial court heard testimony from two Department caseworkers and M.G.,
and it received recommendations from the children’s attorney ad litem. Because M.G. is the only
appellant, we relate only the witnesses’ testimony that pertains to M.G. or the children.
A. First Department Caseworker’s Testimony
Suglenda Sanders, a Department caseworker, testified she was the caseworker from shortly
after the case began. In December 2015, the Department received a report that M.G.’s newborn
child tested positive at birth for drugs. The Department offered services to M.G., but she did not
participate.
Over the next eight months, the Department received two more reports for M.G.: one for
domestic violence in the home and one for the condition of the home environment. The home had
dirty diapers laying out, moldy food in the refrigerator, rodents, piles of laundry, exposed wiring,
and dangerous objects on the floor where the very young children were crawling. The domestic
violence report was that M.G. was being physically abused by I.T., M.G.’s boyfriend.
The Department also received reports of drug use by I.T. and M.G. M.G. tested positive
for methamphetamines in May 2016, but she continued to refuse to participate in services.
In September 2016, M.G. was stopped while she was driving with her children, and she
was detained for outstanding warrants. When no suitable family members could be located to take
-6-
04-17-00787-CV
the children, the Department took the children and sought their removal. Suglenda was called to
the scene, and the Department took custody of the children. The Department learned that the oldest
two children, though school age, were not enrolled in school. The children reported that I.T. had
been violent, including kicking a large hole in the wall during an argument, and physically abusive
to M.G. including punching her in the face. I.T. also struck one of the children with a hanger.
Suglenda concluded by noting her major concern for the children was the domestic
violence between I.T. and M.G., and M.G.’s willingness to have the children continue to live with
I.T. and his family members despite the domestic violence.
B. Second Department Caseworker’s Testimony
Ambry Williams, the current caseworker, testified regarding her interaction with M.G. and
the children.
The Department created a service plan for M.G., which she signed, and Ambry explained
to M.G. that if she failed to work those services, she could lose her parental rights. Despite that
warning, M.G. only partially complied with the service plan. The plan included, inter alia, a
domestic violence class, a parenting class, counseling, and drug treatment.
M.G. completed the domestic violence class, and she started the counseling in July 2017,
but she did not participate consistently until September 2017. M.G. was to be discharged from
counseling in December 2017, but Ambry was not certain whether M.G. had successfully
completed the counseling.
M.G. reported for at least five of her urinalysis tests, and she tested negative for drugs each
time, but she missed several other scheduled and random tests. M.G. completed the Best Option
outpatient drug treatment program, but the Department did not have any information on her drug
test results while she participated in the treatment program.
-7-
04-17-00787-CV
M.G. also had not been able to provide proof of income or maintain a stable job. She had
been working in June or July of 2017, but she was presently unemployed. She had also not been
able to maintain stable housing for the children. Before the children were removed, M.G. and the
children had been living with I.T.’s grandfather. But since M.G. left I.T. (the month before trial),
the Department did not know where M.G. was living, and a key Department concern was that, for
the pendency of her case, M.G. had not been able to demonstrate that she could provide safe and
stable housing for the children.
M.G. was consistent in visiting her children. She was bonded to her children and the
children were bonded to her.
Ambry noted that the children are in a foster home, and the non-relative foster family wants
to adopt the children. The children are doing very well with the foster family. All the children are
up-to-date with their health and medical needs, the school-age children are attending school, and
the two oldest children are receiving counseling services.
Ambry recommended that the trial court terminate M.G.’s parental rights for several
reasons. M.G. had not demonstrated stable housing or consistent employment, and she had relied
on I.T. for housing and support during the pendency of the case despite his drug use and domestic
violence. She was concerned that M.G. might return to live with I.T., despite his drug use and
domestic violence, because of her need for income and housing, and I.T. was the father of M.G.’s
youngest child. If M.G. retained custody of the children and she moved back in with I.T., the
children would be returned to a physically and emotionally dangerous environment.
C. M.G.’s Testimony
M.G. testified that her plan was to move into a three-bedroom house with her brother and
his roommate. She would have a bedroom for her and her six children. Her brother was willing
to co-parent the children, and the children are bonded with her brother. When she asked her oldest
-8-
04-17-00787-CV
child if he wanted to live with his grandparents or with her brother, her oldest child said he wanted
to live with her brother. Her grandmother lives next door to her brother, and her grandmother,
grandfather, father, brother, and sister would provide additional support for the children.
M.G. said she completed the drug treatment and parenting classes. She has benefited from
the classes and counseling. Of the two most recent times she missed counseling, once was due to
her difficulty in finding childcare and the other was because it conflicted with a visit with her
children. She testified she was currently employed, she had a plan to house her children with her
brother, and she wanted more time to show she could provide stable employment and housing.
D. Ad Litem’s Recommendations
The children’s attorney ad litem acknowledged that the children are bonded to M.G., but
M.G. has had over one year to show she can refrain from relationships involving domestic
violence, to show she has a steady job, and to show she can provide safe, stable housing for her
children, but she has failed to do so. M.G. has had relationships with three different men who are
the fathers of her children, and all three “engage her in domestic violence.” M.G. has offered, at
the last minute, names of family members who she says are willing to help her with the children,
but she could have done so much earlier to give the Department time to vet them. Because the
children have a great need for stability, and for over one year M.G. has not demonstrated she could
provide the stable income, housing, and peaceful family relationships the children need, the ad
litem recommended that M.G.’s parental rights be terminated.
M.G.’S PARENTAL RIGHTS
The trial court heard testimony pertaining to the children’s best interests, and the trial court
was the “sole judge[] of the credibility of the witnesses and the weight to give their testimony.”
See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); H.R.M., 209 S.W.3d at 108.
-9-
04-17-00787-CV
The trial court heard testimony that M.G.’s newborn child tested positive for drugs in
December 2015; six months later, M.G. tested positive for methamphetamines when she was
caring for her six children who were ages seven and younger. See TEX. FAM. CODE ANN.
§ 263.307(b)(1), (4), (8); Holley, 544 S.W.2d at 372 (factors (C), (D), (H)). M.G. allowed her six
young children to live in a home that had dirty diapers laying around, moldy food in the
refrigerator, rats, piles of laundry, exposed wiring, and dangerous objects on the floor. See TEX.
FAM. CODE ANN. § 263.307(b)(1), (4), (11), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D),
(H)). She entered and continued relationships with men who brought domestic violence into her
home, to the point that one kicked a hole in the wall, struck her child with a hanger, and punched
her in the face. See TEX. FAM. CODE ANN. § 263.307(b)(1), (4), (7), (11), (12); Holley, 544 S.W.2d
at 372 (factors (B), (C), (D), (G), (H)). She had more than one year to arrange for stable, safe
housing for her children, but it was only shortly before trial that she started making housing
arrangements, and her delay did not allow the Department time to investigate her proposed
arrangements. See TEX. FAM. CODE ANN. § 263.307(b)(1), (3), (4), (10), (11), (12); Holley, 544
S.W.2d at 372 (factors (B), (C), (D), (G), (H)).
The trial court could accept as true the testimony that M.G. loved her children, visited them
regularly, and they loved her. But it could also consider the changes and contradictions in M.G.’s
testimony regarding her employment, housing, and service plan when it evaluated her credibility.
The trial court could believe or disbelieve M.G.’s testimony that she had actually made suitable
arrangements for stable housing for her children. See City of Keller, 168 S.W.3d at 819; H.R.M.,
209 S.W.3d at 108.
Regarding the foster home placement, the trial court could have believed the testimony that
the children were loved and being well cared for; their health, education, medical, and other needs
- 10 -
04-17-00787-CV
were being met; and the foster family wanted to adopt them. See TEX. FAM. CODE ANN.
§ 263.307(b)(2), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (F), (G)).
Reviewing the evidence under the two standards, we conclude the trial court could have
formed a firm belief or conviction that terminating M.G.’s parental rights to her children was in
the children’s best interests. See J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 27; see also TEX.
FAM. CODE ANN. § 263.307(b)(1), (3), (12). Therefore, we conclude the evidence is legally and
factually sufficient to support the trial court’s order. See J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d
at 27.
CONCLUSION
On appeal, M.G. does not challenge the trial court’s finding that she failed to comply with
her service plan. Instead, she argues the evidence is neither legally nor factually sufficient to
support the trial court’s finding by clear and convincing evidence that terminating her parental
rights is in her children’s best interests.
Having examined the evidence under the applicable standards of review, we conclude the
evidence pertaining to the trial court’s findings is both legally and factually sufficient for the trial
court to have found by clear and convincing evidence that terminating M.G.’s parental rights to
her children is in the children’s best interests. Therefore, we affirm the trial court’s order.
Patricia O. Alvarez, Justice
- 11 -