in the Interest of A.T.W. Jr., Child v. Department of Family and Protective Services ( 2019 )

Opinion issued January 29, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00720-CV
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IN THE INTEREST OF A.T.W., JR., Child
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2016-04062J
MEMORANDUM OPINION
This is an appeal from a decree terminating a mother’s parental rights and
appointing the Department of Family and Protective Services as sole managing
conservator of her child. The mother contends that the evidence was legally and
factually insufficient to support the trial court’s termination of her parental rights.
Because the evidence is sufficient to support the trial court’s decree, we affirm.
Background
About two hours after midnight, on July 2, 2016, appellant M.J. was driving
with her then two-year-old son unbuckled in the backseat. M.J.’s car drifted across
three lanes of traffic and slammed into a pole. The child flew through the car
before ending up pinned at the pelvis by the passenger-side dashboard. The child,
A.T.W., sustained a fractured femur, tibia, and fibula, a pulmonary contusion, and
a liver laceration. On the arrival of emergency services, the child was airlifted to a
nearby hospital. The mother claimed she had a small amount of alcohol earlier in
the night, and she passed a field-sobriety test administered by responding officers.
Subsequent urine and blood tests at the hospital confirmed that the mother was not
under the influence of alcohol but indicated that she had marijuana in her system at
a level indicative of daily or chronic use. Although police classified the crash as an
accident and did not criminally charge the mother, the Department of Family and
Protective Services received a referral of neglectful supervision following the
accident.
The Department began its investigation a few days after the accident by
interviewing the mother. Although the mother initially could not remember what
happened before the accident, she later recollected that shortly before the accident,
she was leaning into the backseat to stop A.T.W. from tampering with his seatbelt.
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The mother explained that she was not under the influence of marijuana during the
accident and that she rarely smokes, maybe once every one to two months or
longer.
The Department filed its original petition seeking emergency temporary
managing conservatorship over A.T.W. on July 12, 2016. The trial court granted
the Department’s emergency petition and named it as temporary managing
conservator. The Department formally served the mother with its petition about
two weeks later. That same day, the mother tested positive for cocaine and
marijuana. After an adversary hearing, the trial court issued an order that named
the Department as temporary managing conservator pending the outcome of the
trial. A.T.W. was then placed with his maternal aunt.
The Department created a family-service plan about a week later. The plan’s
primary goal was to reunify the mother with A.T.W. The plan required the mother
to participate in a psychosocial assessment, individual counseling, and a substance-
abuse assessment; attend all Child Protective Services’ related meetings, court
hearings, and scheduled visits with the child; maintain stable housing and
employment; participate in random drug and alcohol testing; and successfully
complete a six-to-eight week parenting course. The trial court later ordered the
mother’s compliance with this plan.
3
After the trial court made the mother’s compliance with the family-service
plan an order of the court, the mother passed a number of drug tests. But on
December 15, 2016, while she was pregnant with another child, she tested positive
for cocaine and marijuana. Two weeks after that child was born, the mother failed
another drug test, testing positive for cocaine at a level indicating multiple uses.1
Meanwhile, A.T.W. was staying with his aunt. The Department received a
report that he was missing and that his mother had taken him. According to the
aunt, however, the mother did not take A.T.W. from her. After a request from the
Department, the trial court issued a writ of attachment to get the child back into the
Department’s possession. Three days after the trial court issued the writ, A.T.W.
and his mother showed up at his paternal great-grandmother’s home. After
receiving a call from the great-grandmother, the Department picked up A.T.W. and
placed him in a foster home. Less than a week later, the mother tested positive for
cocaine and marijuana.
The Department then filed a permanency report with the trial court. The
Department explained that although the mother had provided proof of stable
housing and income; attended court hearings; and complied with the family-service
1
Unfortunately, the newborn died on April 10, 2017. The child’s death was
caused by sudden infant death syndrome.
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plan by completing a psychosocial assessment, psychological evaluation, substance
abuse assessment, substance abuse counseling, parenting classes, and random drug
tests, she failed multiple drug tests, including one while she was pregnant. The
Department explained that its goal had changed and that it was now aiming to have
one of A.T.W.’s relatives adopt him. It recommended that the trial court terminate
the mother’s parental rights. It noted that A.T.W.’s paternal grandmother expressed
a desire for custody but that it had yet to conduct a home study for that
grandmother.
A bench trial began on July 13, 2017. The first witness, a Department
caseworker, testified to many of the facts described above. The mother testified
next. After recollecting the accident and stating that she had no idea how she tested
positive for cocaine, she discussed her relationship with A.T.W.’s father.2 The
mother explained that she had lived with the father for some time beginning in
2013, but that she had not been living with him at the time of the accident. She
confirmed that she was aware that the father had a criminal history but did not
know what his crimes were. Near the end of her testimony, the mother asked the
2
The Department was simultaneously seeking termination of the father’s
parental rights. The Department’s case against the father was based on his
marijuana and cocaine use, his criminal history, his failure to attend all visits
with A.T.W., and his unwillingness to comply with his family-service plan.
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court to give her more time to demonstrate her capability of testing clean and
providing the child with a safe and stable home. After the mother left the stand, the
trial was continued until November 2017.
During the continuance, the mother failed a drug test, testing positive for
marijuana. The mother testified again when trial resumed. She explained that she
had not smoked marijuana since the trial was continued and did not know how she
tested positive for marijuana. After the mother completed her testimony, the
Department caseworker was recalled. The caseworker testified that the Department
had completed an updated home study of the paternal grandmother, who had
previously had her home study denied because she worked too many hours. The
caseworker noted that the grandmother reduced the hours that she worked so that
she could spend more time with A.T.W., that she was willing and able to provide a
permanent home for him, and that she was willing to protect the child from future
abuse or neglect, even if that meant excluding the mother and father from his life.
The caseworker explained that the Department was confident in the paternal
grandmother’s ability to properly care for A.T.W. After brief testimony from the
father, trial was continued again until June 2018.
When trial resumed, a newly assigned caseworker was the first to testify.
She explained that A.T.W. had recently been taken out of foster care and placed
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with his paternal grandmother. The caseworker was satisfied that the grandmother
was meeting A.T.W.’s physical and emotional needs. The caseworker explained
that the grandmother wanted to adopt A.T.W., had plans for the child’s future, and
was capable of providing the child with a safe environment. Lastly, the caseworker
noted that she had recently asked the mother to take a drug test on two occasions,
but the mother refused. Ruling from the bench, the trial court terminated the
mother’s and father’s parental rights and named the Department as permanent
managing conservator. The mother now appeals.
Analysis
The mother challenges the sufficiency of the evidence supporting the trial
court’s termination of her parental rights. Before a trial court may terminate
parental rights, the Department must prove by clear and convincing evidence that
both a predicate statutory ground under section 161.001(b)(1) exists and that
terminating parental rights is in the child’s best interests. TEX. FAM. CODE §
161.001(b)(1)(O); In re B.L.D., 113 S.W.3d 340, 353–54 (Tex. 2003). 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; see also In re A.C., 560
S.W.3d 624, 629–30 (Tex. 2018).
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The trial court concluded that the Department had established by clear and
convincing evidence a predicate statutory ground under section 161.001(b)(1)(E),
engaging in conduct that endangers the child’s physical or emotional well-being,
and section 161.001(b)(1)(O), failing to comply with provisions of the trial court
order that specifies the actions necessary for the parent to obtain the return of the
child. The trial court also concluded that the Department established by clear and
convincing evidence that terminating the mother’s parental rights would be in
A.T.W.’s best interests. See TEX. FAM. CODE § 161.001(b)(2).
On appeal, the mother contends that the trial court’s findings rested on
legally and factually insufficient evidence. To assess the evidence’s legal
sufficiency, we ask, “if, viewing all the evidence in the light most favorable to the
fact-finding and considering undisputed contrary evidence, a reasonable factfinder
could form a firm belief or conviction that the finding was true.” In re A.C., 560
S.W.3d at 631; see also In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume
that any disputed facts were resolved in favor of the finding as long as a reasonable
factfinder could have done so. In re A.C., 560 S.W.3d at 630–31. If “no reasonable
factfinder could form a firm belief or conviction” that the matter on which the
Department bears the burden of proof is true, then we “must conclude that the
evidence is legally insufficient.” In re J.F.C., 96 S.W.3d at 266. In reviewing the
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factual sufficiency of the evidence, we weigh “disputed evidence contrary to the
finding against all the evidence favoring the finding;” we “must consider whether
disputed evidence is such that a reasonable factfinder could not have resolved it in
favor of the finding.” In re A.C., 560 S.W.3d at 631. The evidence is factually
insufficient if, “in light of the entire record, the disputed evidence a reasonable
factfinder could not have credited in favor of a finding is so significant that the
factfinder could not have formed a firm belief or conviction that the finding was
true.” Id.
I. Sufficiency of the evidence to support predicate statutory grounds
The mother challenges the legal and factual sufficiency of the evidence that
she failed to comply with the provisions of the trial court’s order that specified the
actions necessary for her to obtain the return of A.T.W. See TEX. FAM. CODE
§ 161.001(b)(1)(O). The trial court incorporated the family-service plan into an
order that laid out the requirements the mother had to satisfy before A.T.W. would
be returned to her. One of those requirements was that the mother submit to all
random drug tests. Within the two weeks before trial concluded, a Department
caseworker asked the mother to take two separate drug tests, but the mother
refused both times. And the mother acknowledged at trial that she refused to take
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these tests. This was a blatant failure to comply with a provision of the trial court’s
order specifying the actions necessary for the return of the child.
In her brief, the mother argues that although she failed to comply with the
trial court’s order with respect to the drug tests, she complied with every other
requirement. But partial or substantial compliance with a court-ordered family-
service plan is insufficient to avoid termination of parental rights. In re J.M.T., 519
S.W.3d 258, 258 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (collecting
cases). We therefore reject the mother’s argument.
In light of the entire record, including the undisputed evidence that the
mother refused to take two drug tests, we conclude that the trial court reasonably
could have formed a firm belief or conviction that the mother failed to comply with
a provision of its order that specified the requirements the mother had to satisfy
before having A.T.W. returned to her. We therefore overrule the mother’s legal
and factual sufficiency complaints on the predicate finding under section
161.001(b)(2). And because “[o]nly one predicate finding . . . is necessary to
support a judgment of termination,” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003),
we do not reach the mother’s argument that the evidence supporting the trial
court’s finding on the other predicate statutory ground was legally and factually
insufficient.
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II. Sufficiency of the evidence to support best-interest finding
The mother next challenges the factual and legal sufficiency of the evidence
supporting the trial court’s finding that the termination of her parental rights would
be in A.T.W.’s best interests. To assist us in our analysis of the legal and factual
sufficiency of the evidence underlying the trial court’s finding that termination was
in A.T.W.’s best interests, we evaluate the entire record in light of the factors set
out in Holley v. Adams: (1) the child’s desires; (2) the child’s current and future
physical needs; (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 child’s best interests;
(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, and evidence of
all nine factors is not required to support a termination judgment. Id. at 372.
Evidence that establishes the predicate acts under section 161.001(b)(1) may be
relevant to determining the child’s best interests. In re C.H., 89 S.W.3d 17, 27–28
(Tex. 2002).
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Starting with the second Holley factor, which concerns A.T.W.’s present and
future emotional and physical needs, the mother acknowledges that his needs are
currently being met in his paternal grandmother’s home. But she maintains that it
“remains speculative whether his future and emotional needs will be met.”
However, the mother did not present any evidence to support her suggestion that
the paternal grandmother will be unable to meet A.T.W.’s needs sometime in the
future; in fact, the evidence demonstrates the contrary. The paternal grandmother
has taken numerous steps, including reducing the time she spends at work, to
ensure that she is able to meet A.T.W.’s needs. The Department conducted a home
study and approved of the grandmother’s home and had confidence in her ability to
continually meet A.T.W.’s needs. Further, one of the stated reasons the
Department was interested in placing A.T.W. with the paternal grandmother was
so that A.T.W. would remain with his relatives and thereby allowing the mother
and father to more easily have access to him than they otherwise would. A child’s
need for a prompt and permanent home is a paramount consideration in evaluating
a child’s best interest. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston
[14th Dist.] 2016, pet. denied). We therefore reject the mother’s argument. See
e.g., Martinez v. Harris Cty., 526 S.W.3d 557, 565–66 (Tex. App.—Houston [1st
Dist.] 2017, no pet.) (rejecting argument as speculative and contrary to the record).
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The trial court reasonably could have concluded that the second Holley factor
weighs in favor of termination.
As for the emotional and physical danger to A.T.W. now and in the future,
the mother again argues that it is speculative as to whether he will remain safe with
his paternal grandmother. But like her previous argument, she presented no
evidence to support her claim. Nothing in the record suggests that the paternal
grandmother poses any threat, physical or emotional, to A.T.W. Again, the record
suggests the contrary. The grandmother took A.T.W. to the hospital following the
car accident to have a plate put into his leg and then later taken out. The
grandmother has also taken the necessary steps to adopt A.T.W. and testified and
demonstrated to the satisfaction of the Department that she has the resources to do
so. The mother, on the other hand, failed to comply with the court’s order that was
specifically designed to “to reduce [the] risk” of harm to A.T.W. The trial court
reasonably could have concluded that the third Holley factor weighs in favor of
termination.
The fourth Holley factor focuses on the parental abilities of the individuals
seeking custody. Although the mother completed most of the family-service plan
to the satisfaction of the Department, she acknowledges that she “may need
additional services to address her parenting deficiencies.” Furthermore, the mother
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demonstrated a true struggle in maintaining her sobriety. Even while she was
pregnant with another child, she tested positive for cocaine and marijuana. The
trial court reasonably could have concluded that the mother’s failure to maintain
sobriety and comply with the family-service plan demonstrated her inability to
place the needs of her child before her own desires. In contrast, the paternal
grandmother has made clear that she is capable of providing A.T.W. with the love,
care, and safe, stable environment that he needs. The caseworker that conducted
the grandmother’s home study testified that the home was a safe place for A.T.W.
and that she was comfortable with his placement there. The trial court reasonably
could have concluded that the fourth Holley factor weighs in favor of termination.
The fifth Holley factor instructs courts to consider the programs available to
assist the individuals seeking custody in promoting the child’s best interests.
Regarding this factor, the mother argues that the Department could create a
modified family-service plan upon restoration of her parental rights. However, she
has not identified any specific service or program that would address the
Department’s and the trial court’s concerns. The mother’s argument again relies on
speculation. The mother’s failure to comply with the original plan over a two-year
period and her inability to refrain from using drugs, including while pregnant,
allowed the trial court to draw the reasonable conclusion that a modified family-
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service plan would likely be unhelpful and therefore conclude that the fifth Holley
factor weighs in favor of termination.
As for the sixth factor, which considers the plans for the child by the
individuals or agency seeking custody, the Department endorses the paternal
grandmother as an adopting candidate. The Department notes that the grandmother
has reduced her work hours to ensure she has more time to spend with and meet
the needs of A.T.W.; she has taken necessary steps to adopt him; she has plans for
his future education; and she has the financial and parental capability of providing
A.T.W with the safe, stable, and nurturing environment that he needs. As for the
mother, her brief simply states, “The mother’s plans are unknown.” The trial court
reasonably could have concluded that this factor weighs in favor of termination.
The next factor considers the stability of the home or proposed home. The
mother acknowledges that A.T.W.’s current placement with his paternal
grandmother is “reportedly safe, stable, protective and meeting [of all] the child’s
needs.” In light of our previous discussions concerning the paternal grandmother’s
parental ability and the mother’s acknowledgement, the trial court reasonably
could have concluded that this factor weighs in favor of termination.
The final two Holley factors concern any acts or omissions by the parent
indicating that the existing parent-child relationship is inappropriate and any
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excuse for those acts or omissions. According to the mother, her drug use “is not
an indication that [her] relationship with her child is improper in any way,” and
therefore she advances no excuses for her acts. We disagree. See, e.g., Latham v.
Dep’t of Fam. & Prot. Servs., 177 S.W.3d 341, 349 (Tex. App.—Houston [1st
Dist.] 2005, no pet.) (concluding that mother’s drug use and failure to comply with
family-service plan indicated an improper parent-child relationship). Specifically,
the trial court reasonably could have concluded that the mother’s failure to take the
final two drug tests and her testing positive on several drug tests, including a test
while she was pregnant, are indicative of the mother’s current and past inability to
place A.T.W.’s needs before her own. Similarly, the trial court reasonably could
have concluded that these two factors weigh in favor of termination.
Aside from A.T.W.’s desires, a review of the Holley factors reveals only
evidence indicating that termination was in his best interests.3 And A.T.W.’s exact
desires are not entirely clear from the record. The mother contends that A.T.W.
clearly demonstrated his desire to be with her through his conduct. The only
3
Our conclusion also finds support in the closing argument of A.T.W.’s
guardian ad litem, who stated, “I believe the Mom’s history with drugs
doesn’t make her a capable parent who can provide a safe and stable
environment for the child. I believe the paternal grandmother can safely take
care of this child and provide for the future; therefore, it is in the best
interest to terminate.”
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example of his conduct that she cites is that A.T.W. would become upset when she
left visitation sessions. Nevertheless, no single Holley factor is dispositive. See
Holley, 544 S.W.2d at 372. Viewing the evidence in the light most favorable to the
trial court’s finding—as we must, see In re J.F.C., 96 S.W.3d at 266—we conclude
that the trial court reasonably could have found that any desire by A.T.W. to be
with his mother was greatly outweighed by the other factors and the evidence
demonstrating that the paternal grandmother was satisfying his needs and
providing stability. Furthermore, there was no disputed evidence that a reasonable
factfinder could not have resolved in favor of finding that termination was in
A.T.W.’s best interests, so as to prevent the trial court from forming a firm belief
or conviction in that regard. Accordingly, we overrule the mother’s challenge to
the legal and factual sufficiency of the evidence on the child’s best interests.
Conclusion
We affirm the trial court’s judgment.
Richard Hightower
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
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