in the Interest of H.P. and F.P., Children ( 2016 )

NUMBER 13-16-00277-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF H.P. AND F.P., CHILDREN
On appeal from the County Court at Law No. 5 of
Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Memorandum Opinion by Justice Longoria
Appellants N.P. (“Father”) and D.P. (“Mother”) appeal a final judgment that
terminated their parental rights over their children, H.P. and F.P. (collectively, “the
children”).1 We affirm.
I. BACKGROUND
A. Events Leading to Removal
1 We utilize aliases to refer to the children, appellants, and other persons involved to protect the
children’s privacy. See TEX. R. APP. P. 9.8(b).
In early 2015 appellants and their children resided at a homeless shelter in Nueces
County because a fire destroyed their residence. On March 6, 2015, case managers at
the shelter responded to reports that appellants were having an argument and discovered
they were using heroin while caring for the children. Appellants would take turns watching
the children while the other went into the bathroom to inject heroin. Shelter staff found
ten syringes in appellants’ room which were accessible to the children. The shelter
notified the Texas Department of Family and Protective Services (“the Department”).
Two investigators from the Department interviewed appellants separately the
same day. Father admitted that he injected heroin two or three times a day and that
Mother injected it approximately ten times a day. Mother confirmed in her interview that
she used heroin ten times a day and that she and Father injected between $50 and $100
worth of heroin each day. She also told the investigator that the family’s only income was
the $50–$400 a night she earned dancing at a gentlemen’s club. After completing the
interviews, the Department removed the children from appellants’ care. H.P. was two
years old and F.P. was eight months old at the time.
The Department’s investigators immediately took both children to the hospital for
treatment of a respiratory infection. F.P. was also given medication to treat a thyroid
condition which, according to the records of Father’s interview, had gone untreated since
the fire destroyed her medication. Preliminary drug tests of both children were negative,
but F.P. tested positive for heroin after more extensive testing. The Department placed
both children in the Ark Shelter in Corpus Christi, and they remained there for the
pendency of the case.
B. Post-Removal
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1. Appellants’ Initial Activity in Texas
The trial court ordered both appellants to comply with each requirement set out in
the family service plans created by the Department to regain custody of the children. The
court further ordered appellants to participate in a drug assessment and to follow all of
the resulting recommendations.
In the weeks that followed, neither appellant signed the service plans created by
the Department. Both appellants were tested for drugs and tested positive for heroin.
Mother completed a drug assessment and was referred to inpatient treatment but did not
receive it. The record reflects that Mother initially had trouble finding a program with an
opening. However, Department caseworker Monica Alaniz testified that Mother was
unwilling to attend treatment when there was an opening because it meant separation
from Father. Father attended inpatient drug treatment for five days before leaving
because it meant separation from Mother and the children. Mother tested positive for
heroin again on April 23, 2015.
Appellants were unable to stay in the original shelter following the removal of the
children, and had difficulty finding another residence in the weeks that followed. They
were unable to enter other shelters because of their lack of identification or their drug use.
They were also unwilling to be separated even though some shelters do not accept
couples. At one point during this time, appellants lived in a tent near the Department’s
office.
Despite their difficulties in obtaining shelter, appellants attended every scheduled
visitation with their children. Alaniz testified at the termination hearing that both parents
acted appropriately towards the children during the visitations that she witnessed. The
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record also reflects that the visit on March 28, 2015 ended early because the Department
caseworker monitoring the visit observed Mother “falling asleep during the visit and was
taking a long time to complete easy tasks.”
Father also had legal difficulties during this time period; he was arrested less than
a month after the removal for the offenses of injury to an elderly individual and assault
involving family violence. At the termination hearing, Father testified that the charges
arose from an incident in which he defended the children’s grandmother (“Maternal
Grandmother”) from an assault. He further testified that he had an outstanding charge
for possession of a controlled substance dating from before the removal.
After Father was released on bond, appellants spoke to Alaniz about returning to
Pennsylvania. Appellants explained to her that they had pending criminal charges there
that they wished to resolve before doing what was necessary to regain custody of the
children. Alaniz testified that she and her superiors at the Department viewed appellants’
request as a positive step and agreed to help. The Department provided appellants with
one-way bus tickets to Pennsylvania while the children remained in the Department’s
custody in Corpus Christi. Neither parent had completed any of the services required by
the family service plans at this time.
2. Moves to Pennsylvania and Back to Texas
Appellants surrendered to authorities within days of their arrival in Pennsylvania.
At this point, appellants’ paths diverged. Father spent two months in jail on a pending
charge for conspiracy to commit burglary. During his incarceration, Father completed a
parenting class. Father was released on bond but was arrested again and extradited
back to Texas for violating his bond conditions by going to Pennsylvania. He later pled
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true to his pending charges in Texas, and the Texas court placed him on deferred-
adjudication community supervision. After disposing of his Texas charges, Father
obtained a job at the Corpus Christi Grain Company and attempted unsuccessfully to find
a stable residence.
Mother served three months in Pennsylvania jail and lived with her father there
after her release. Mother later overdosed on an unspecified substance and was briefly
incarcerated again. At that time, Mother told her father that she was planning on entering
inpatient drug treatment after her release and intended to file for divorce from Father.
Alaniz, however, testified that she never received any documentation from Pennsylvania
showing that Mother completed services there except for a drug assessment while she
was still incarcerated. Alaniz further testified that Mother’s father told Alaniz that Mother
“never stopped using while she was here in Pennsylvania.”
Mother returned to Corpus Christi in December of 2015 to visit the children for the
Christmas holidays. According to Maternal Grandmother, Mother met up with Father
during this time and used drugs with him again. On December 26, 2015, Mother was
arrested for assaulting Father, evading arrest, and theft. Father was arrested at the same
time for failure to properly identify himself and on a warrant issued pursuant to a motion
to revoke his probation. Father was arrested again after his release, this time on a warrant
from Pennsylvania for failing to appear.
Father was incarcerated at the time of the termination hearing but appeared in
person and by counsel. Mother appeared by counsel. Testimony at trial revealed that
Mother had recently spent time in an inpatient drug treatment facility but could not be
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located after she left the facility.2
C. Termination Hearing
Following a bench trial, the trial court found by clear and convincing evidence that
Mother committed five of the statutory grounds for termination and that termination was
in the best interests of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E),
(N), (O), (P), (b)(2) (West, Westlaw through 2015 R.S.). Regarding Father, the trial court
found by clear and convincing evidence that he committed six of the statutory grounds for
termination and that termination was in the best interests of the children. See id.
§ 161.001(b)(1)(D), (E), (N), (O), (P), (L)(ix), (b)(2). This appeal followed.
II. DISCUSSION
Appellants argue in two issues that the evidence is legally and factually insufficient
to support the trial court’s findings that (1) they committed any of the statutory grounds
for termination and (2) termination is in the best interests of the children. See id.
§ 161.001(b)(1), (2).
A. Termination Standard of Review and Applicable Law
The natural right which exists between parents and their children is of constitutional
dimensions, and courts must strictly scrutinize proceedings to terminate that right. In re
K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). To properly protect the right at issue, due
process requires courts to apply the clear and convincing standard of proof. Id. The
Texas Family Code defines clear and convincing evidence as “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
2 We abated this case for the trial court to determine whether Mother could be located and whether
she had abandoned her appeal. Mother appeared at the abatement hearing and testified that she wished
to continue with this appeal, and the trial court entered findings consistent with her testimony. We therefore
address Mother’s appeal on the merits.
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truth of the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West,
Westlaw through 2015 R.S.).
The clear-and-convincing standard heightens our review of the legal and factual
sufficiency of the evidence. In a legal sufficiency review under this standard we “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.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so. Id. As a
corollary to this requirement, we disregard all evidence that a reasonable factfinder could
have disbelieved or found to be incredible. Id. We are not, however, required to disregard
undisputed facts which do not support the trial court’s finding. Id.
When performing a factual sufficiency review we give due consideration to the
evidence that the factfinder could reasonably have found to be clear and convincing. In
re C.H., 89 S.W.3d 17, 25 (Tex. 2002). A factual sufficiency review also requires us to
determine whether a factfinder could reasonably form a firm belief or conviction about the
truth of the allegations. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). The
distinction with a legal sufficiency review is that factual sufficiency includes disputed or
conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). “If, in light of the
entire record, the disputed evidence that a reasonable factfinder could not have credited
in favor of the finding is so significant that a factfinder could not reasonably have formed
a firm belief or conviction, then the evidence is factually insufficient.” Id. (quoting In re
J.F.C., 96 S.W.3d at 266). In applying this standard our review should “not be so rigorous
that the only factfindings that could withstand review are those established beyond a
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reasonable doubt.” In re H.R.M., 209 S.W.3d at 108.
We apply these standards to determine whether the Department proved by clear
and convincing evidence: (1) appellants committed one or more of the statutory acts or
omissions set out in section 161.001(b)(1) of the Texas Family Code and (2) termination
is in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1), (2).
B. Statutory Grounds for Termination
By their first issue, both appellants argue the evidence is legally and factually
insufficient to support a finding of any of the predicate grounds for termination under
subsections 161.001(b)(1)(D), (E), (N), (O), and (P). Father also challenges the
sufficiency of the evidence supporting the finding against him under subsection
161.001(b)(1)(L)(ix). We address appellants’ challenges to the sufficiency of the evidence
supporting a finding under subsection 161.001(b)(1)(P) first because it is dispositive.
Subsection 161.001(b)(1)(P) allows termination of parental rights on a finding of
clear and convincing evidence that a parent:
used a controlled substance, as defined by Chapter 481, Health and Safety
Code, in a manner that endangered the health or safety of the child, and:
(i) failed to complete a court-ordered substance abuse treatment
program; or
(ii) after completion of a court-ordered substance abuse
treatment program, continued to abuse a controlled
substance;
TEX. FAM. CODE ANN. § 161.001(b)(1)(P). The State argues that appellants waived this
issue because neither of their briefs included any arguments or citations to the record
regarding subsection (P). See In re J.A.M.R., 303 S.W.3d 422, 425 (Tex. App.—Dallas
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2010, no pet.) (observing that “[b]are assertions of error without argument or authority
waive error”).
We agree that appellants inadequately briefed their sufficiency argument regarding
the court’s finding under subsection (P). The failure to offer a substantive analysis or to
provide appropriate citations to the record waives an appellate issue. In re T.T.F., 331
S.W.3d 461, 477–78 (Tex. App.—Fort Worth 2010, no pet.); see TEX. R. APP. P. 38.1(i).
Appellants assert in their briefs that the evidence is insufficient to support a finding under
subsection (P), but they offer no argument regarding why the evidence is insufficient that
they either (1) failed to complete a court-ordered substance abuse treatment program or
(2) completed a treatment program but continued to abuse a controlled substance
afterwards. See TEX. FAM. CODE ANN. § 161.001(b)(1)(P). We hold that both appellants
have waived their challenge to the sufficiency of the evidence supporting termination
under section 161.001(b)(1)(P). See In re T.T.F., 331 S.W.3d at 477–78; TEX. R. APP. P.
38.1(i).
Because section 161.001(b)(1) requires proof of only one predicate ground to
support termination, we do not address the sufficiency of the evidence supporting the trial
court’s finding under the other subsections. See In re E.N.C., 384 S.W.3d 796, 803 (Tex.
2012); see also TEX. R. APP. P. 47.1. We overrule appellants’ first issue.
C. Best Interests of the Children
By their second issue, appellants argue that the evidence is legally and factually
insufficient to support the finding that termination was in the best interests of the children.
See TEX. FAM. CODE ANN. § 161.001(b)(2).
1. Applicable Law
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The best interest analysis requires us to balance the parent’s desire to raise their
child with the State’s responsibility to promote the child’s best interest. In re E.R., 385
S.W.3d 552, 555 (Tex. 2012). We begin this analysis by indulging a strong presumption
that it would best serve the child’s best interest to maintain the parent-child bond. In re
O.R.F., 417 S.W.3d 24, 39 (Tex. App.—Texarkana 2013, pet. denied) (op. on reh’g). The
Department may overcome that presumption by clear and convincing evidence. Id. The
Texas Supreme Court has articulated the following list of factors for us to consider when
performing the best interest analysis:
1. the children’s desires;
2. the emotional and physical needs of the children now and in the future;
3. the emotional and physical danger to the children now and in the future;
4. the parenting abilities of the individuals seeking custody;
5. the programs available to assist these individuals to promote the best
interest of the children;
6. the plans for the children 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 improper;
9. any excuse for the acts or omissions of the parent.
In re E.N.C., 384 S.W.3d at 807 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976)). The list of Holley factors is not exhaustive, and some factors will not be applicable
in a particular case. In re C.H., 89 S.W.3d at 27. Undisputed evidence of just one factor
may be enough to support a finding that termination is in the best interest of a child. Id.
However, “scant evidence relevant to each Holley factor will not support a finding.” M.C.
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v. Tex. Dep’t of Family & Protective Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso
2009, pet. denied).
2. Analysis
Appellants argue in a short section of their briefs that the evidence is insufficient
to support the trial court’s best interest finding. They assert that the second and third
factors favor them because Father was employed at the time of trial and both parents
were affectionate and appropriate with the children during their visits. They also argue
that the children will have a stable home because Father testified he had been sober for
five months, was employed, and had taken a parenting class. We disagree with
appellants that the evidence is insufficient to support the best interest findings because
there is substantial evidence relevant to several of the Holley factors which supports the
trial court’s finding that terminating the parental rights of both appellants is in the best
interest of the children.
Regarding the second Holley factor, “permanence is a paramount consideration
for the child's present and future physical and emotional needs.” In re J.D., 436 S.W.3d
105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). As a general matter, a parent
who lacks stability, an income, and a home is unable to provide for a child’s physical and
emotional needs. In Interest of X.R.L., 461 S.W.3d 633, 640 (Tex. App.—Texarkana
2015, no pet.) (internal quotation marks omitted). At the time of the termination hearing,
Father was imprisoned and without a stable residence. While Father was employed
before his most recent arrest, the trial court could conclude that his imprisonment and the
prospect of extradition back to Pennsylvania made continuation in that employment
uncertain at best. Mother’s whereabouts were unknown at the time of trial, but she had
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just left an inpatient drug treatment program and had no income or home. The trial court
could properly infer that this inability of both appellants to meet the children’s needs for a
substantial period of time would continue in the future. See In re J.D., 436 S.W.3d at 118
(“A fact finder may infer from a parent's past inability to meet a child’s physical and
emotional needs an inability or unwillingness to meet a child's needs in the future.”). The
second Holley factor supports termination.
Much of the evidence relevant to the second Holley factor is also relevant to the
third, which looks to the danger to the children now and in the future. “As a general rule,
conduct that subjects a child to a life of uncertainty and instability endangers the child’s
physical and emotional well-being.” In re D.W., 445 S.W.3d 913, 928 (Tex. App.—Dallas
2014, pet. denied). As we described in greater detail above, appellants subjected the
children to a life of uncertainty and instability before the removal and led similar lives
during the course of the case. The trial court could properly infer that similar conduct
would reoccur in the future if appellants regained custody of the children. See id.; In re
J.D.B., 435 S.W.3d 452, 467–68 (Tex. App.—Dallas 2014, no pet.).
Also relevant to the potential danger to the children now and in the future is the
evidence that appellants ignored the children’s medical needs. Immediately after the
removal, both children were treated for a respiratory infection. While it is not clear from
the record that H.P.’s infection warranted hospitalization, one of the Department’s
investigators testified that F.P. was wheezing so badly that “as soon as you took her, you
could see that she needed medical care.” F.P. also needed medication for her thyroid
condition, which appellants had apparently allowed to go untreated since the fire. The
trial court could conclude that appellants endangered the children by not attending to their
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medical needs and could infer that this behavior would repeat in the future. See In re
A.T., 406 S.W.3d 365, 372 (Tex. App.—Dallas 2013, pet. denied) (holding that there was
a danger to the child when the parents did not attend to the child’s medical needs).
The trial court could also consider under this factor the strong evidence that
appellants consumed illegal drugs before and after the removal of the children. F.P.
tested positive for heroin immediately after she was removed from appellants’ care. Both
appellants tested positive for heroin in the weeks immediately after the removal and
continued to use drugs during the course of the case. Mother tested positive for heroin
on April 23, 2015, over a month after the removal of the children. Alaniz testified without
objection that Mother’s father told Alaniz that Mother “never stopped using [heroin] while
she was here in Pennsylvania.” Maternal Grandmother testified that when Mother
returned to Corpus Christi in December 2015, Mother and Father met up and “ended up
using [drugs] together.” This pattern of illegal drug use during the pendency of the case
strongly suggests that appellants are not willing or able to meet the children’s need for a
safe environment. See In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.]
2012, no pet.). The third Holley factor weighs in favor of termination.
The fourth Holley factor looks to the parenting abilities of the individuals seeking
custody. While we acknowledge that appellants were appropriately caring during their
visits with the children, there is other evidence relevant to this factor which supports the
trial court’s best interest finding. First, the evidence that we discussed under the second
factor regarding appellants’ inability to meet the needs of their children is also relevant to
their parenting abilities. See In re D.W., 445 S.W.3d at 926. Moreover, “[a] parent's
inability to provide adequate care for a child, lack of parenting skills, and poor judgment
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may be considered when looking at the child's best interests.” In re K.S., 420 S.W.3d
852, 855 (Tex. App.—Texarkana 2014, no pet.). The trial court could consider that
appellants spent a substantial portion of their very limited income to purchase heroin
rather than on treating the children’s illnesses or on other necessities. See id. The fourth
Holley factor weighs in favor of termination.
The fifth Holley factor looks to the programs available to the individuals seeking
custody to promote the best interest of the children. Mother completed a drug
assessment, but she did not complete inpatient treatment as recommended by the
assessment. Mother also did not begin or complete counseling sessions or any of the
other programs available to her through the family service plan. Some of her failure to
complete services is likely the result of her imprisonment in Pennsylvania, but we cannot
ignore that she did not make use of almost all of the programs available to her. See In re
A.C., 394 S.W.3d at 642 (holding that termination was in the child’s best interest when
the mother did not complete a drug treatment program). Father entered a drug treatment
program but left after five days because staying in the program would mean he would
have minimal contact with Mother and the children. Father did complete a parenting class
while he was in jail in Pennsylvania, but he did not complete drug treatment, counseling,
or any of the other services specified by the family service plan. See id. The fifth Holley
factor weighs in favor of termination.
The sixth Holley factor addresses the plans for the children by the individuals or
agency seeking custody. At the time of trial the children remained in the Ark Shelter. The
Department’s plans for the children were to seek adoption, but the Department had not
yet found a family willing to adopt the children. Mother was not present to testify regarding
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her plans for the children, but Father testified that he intended to do what was necessary
to regain custody of them as soon as he was released from jail. Father, however, had no
immediate plans for the children’s care while he was still incarcerated. We acknowledge
Father’s stated desire to turn his life around, but the trial court was free to reject his
assurances that he would provide a stable home in the future. See In re J.D., 436 S.W.3d
at 120; In re A.M., 385 S.W.3d 74, 83 (Tex. App.—Waco 2012, pet. denied). The sixth
Holley factor weighs in favor of termination.
The seventh Holley factor addresses the stability of the home or the proposed
placement. At the time of the termination hearing there was no proposed placement for
the children, and neither appellant had established a home for them. The seventh Holley
factors is neutral regarding termination.
The eighth Holley factor is concerned with any acts or omissions which may
indicate that the parent-child relationship is improper. We consider any excuses for those
acts or omissions under the ninth factor. As we discussed in greater detail above,
appellants failed to maintain stable housing or employment during the course of the case
and endangered the children by not seeing to their medical needs. Furthermore, both
appellants were arrested on several occasions for committing criminal offenses before
and after coming to Texas, behavior which also subjected the children to a life of instability
and uncertainty. See In re J.D., 436 S.W.3d at 121. Appellants offered no excuses for
these acts and omissions in their briefs. The eighth and ninth factors weigh in favor of
termination.
In summary, after a thorough review of the record in the light most favorable to the
trial court’s verdict, we conclude the evidence is legally sufficient because a reasonable
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trier of fact could form a firm belief or conviction that termination was in the best interest
of both children. See In re J.F.C., 96 S.W.3d at 266. The evidence is factually sufficient
because the disputed evidence is not so significant it would prevent a reasonable
factfinder from forming a firm belief or conviction that termination was in the best interests
of the children. See In re H.R.M., 209 S.W.3d at 108.
We overrule appellants’ second issue.
III. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA,
Justice
Delivered and filed the
6th day of October, 2016.
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