in the Interest of J.L.K, J.H.K., T.C.C. and J.B.K v. Department of Family and Protective Services ( 2020 )

Opinion issued April 2, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00884-CV
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IN THE INTEREST OF J.L.K., J.H.K., T.C.C., AND J.B.K., Children
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2018-04819J
MEMORANDUM OPINION
The trial court terminated the parental rights of appellant, A.D.C. (Arial), to
her four children, J.L.K. (Jeff), J.H.K. (Jane), T.C.C. (Tyesha), and J.B.K. (Janet).1
1
We refer to the children and their family members by the pseudonyms used in the
parties’ briefing for clarity and to protect the identity of the children.
In her sole issue on appeal, Arial argues that the evidence was factually insufficient
to support the trial court’s finding that termination of her parental rights was in the
children’s best interest. We find the evidence was sufficient, and we affirm.
Background
Arial is the mother of Jeff, born in 2012, Jane, born in 2014, Tayesha, born
in 2016, and Janet, born in 2018. Arial had a romantic relationship with Q.O.K.
(Quick),2 and he is the father of two of the children, Jane and Janet. The Texas
Department of Family and Protective Services (DFPS) was unable to identify the
biological fathers of Jeff and Tayesha.
Case worker Deshondra Johnson testified that Jeff, Jane, Tayesha, and Janet
were ages seven, five, three, and eighteen months, respectively, at the time of trial.
She testified that DFPS had been involved with Arial and her children for over five
years at the time of trial. The record reflects that, in approximately 2014, Arial’s
involvement with DFPS resulted in Jeff (then aged two) and Jane (then an infant)
being removed from Arial and placed with their paternal grandmother, “Ms.
Nana.”
The underlying case began in 2018, when DFPS received two referrals—one
in May and another in July—against Arial and Quick for neglectful supervision of
2
Quick, who was established by paternity testing to be the father of Jane and Janet,
had his parental rights to those two children terminated. He is not a party to this
appeal.
2
Tayesha and Janet. On petitioning to remove Tayesha and Janet from Arial’s care,
DFPS noted that Jeff and Jane had been living with Ms. Nana for several years and
sought to place the two younger children with Ms. Nana as well. DFPS alleged
that, in addition to neglectful supervision and concerns that Arial lacked stable
housing for herself and her children, both Tayesha and Janet had tested positive for
tetrahydrocannabinol (THC) at birth and that Arial had a history of engaging in
domestic violence, including engaging in domestic violence around the children.
As of October 2018, all four children began living with Ms. Nana. DFPS
provided Arial with a family plan of service, which required, among other items,
that she maintain employment and stable housing, complete psychological,
substance abuse, and domestic violence assessments and follow any
recommendations, and complete parenting classes. However, Arial failed to
complete the plan, and she also had several positive drug tests.
In October 2019, the trial court held the final termination hearing. DFPS
presented evidence of Arial’s criminal background. This included a 2015 offense
of family violence against Quick, in which Arial was granted deferred
adjudication. DFPS presented evidence, however, that the State had moved to
proceed with adjudication of this offense, asserting that Arial had violated several
terms of her deferred adjudication community supervision in connection with that
case, including that she had failed to report to her supervision officer and for a
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required administrative hearing, to pay required fines, to complete her community
service restitution, to comply with the court’s order that she have no contact with
Quick, the victim, and to attend the required anger management and batterer’s
intervention program. Arial had also pleaded guilty in 2018 to the felony offense of
cruelty to a non-livestock animal based on her killing Quick’s dog, and she was on
probation for that offense.
In addition to this documentation reflecting Arial’s criminal history, Johnson
testified that, at the time of trial, there was an open warrant for Arial’s arrest based
on her violation of the deferred adjudication community supervision terms of the
2015 charge for assaulting Quick. Johnson stated that Arial would be arrested at
the conclusion of the trial, and Johnson was concerned that the arrest also indicated
that she had violated the terms of her probation in the 2018 felony charge for
killing Quick’s dog.
DFPS also presented evidence of Arial’s drug test results taken during the
pendency of the case. In addition to providing laboratory results, Johnson also
testified that Arial did not fully comply with DFPS’s random drug testing. Johnson
testified that the results of Arial’s drug tests in October 2018, December 2018,
March 2019, and July 2019 all showed the presence of controlled substances in her
system. In October 2018 she tested positive for cocaine, cocaine metabolites, and
marijuana. In December 2018, she tested positive for cocaine and marijuana. In
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March 2019, she testified positive for marijuana. Johnson also testified that Arial’s
hair follicle drug test was positive for cocaine and marijuana in July 2019. Johnson
acknowledged that Arial’s drug tests had generally shown a decreasing use of
drugs until July 2019, when the level went “way back up.” Arial’s September 2019
drug test was negative.
Regarding services, Johnson testified that Arial had not completed the
recommendations based on her domestic violence assessment, which included
requirements that she take anger management and domestic violence education.
She had not completed her outpatient substance abuse treatment or the
recommendations following from her psychological assessment.
Arial had completed some portion of her family service plan. Johnson
testified that Arial’s provider had notified DFPS that Arial had participated in
individual counseling and substance abuse counseling, but at the time of trial,
Johnson had not been provided with any proof that Arial had been successfully
discharged from those programs. Johnson also acknowledged that Arial had
presented paperwork on the day of trial demonstrating that she had completed two
of eight required parenting classes. Johnson testified that, following her domestic
violence assessment, the provider had recommended that Arial complete a 45-day
intensive outpatient treatment with three group sessions and one individual session
per week. Johnson had not yet found a place for Arial to complete that treatment.
5
During the year this case was pending, Arial attended one visitation with her
children, despite the fact that DFPS would have allowed more visitations. Johnson
testified that she scheduled a visitation that Arial missed, and Arial told her “that
she didn’t want to do visitation because she liked to have toys and things for her
children. And then after that, she said [she could not do visitation] because of her
stress. She had high blood pressure, so she wasn’t able to do it.” Johnson believed
that Arial had attended Jeff’s birthday party, but she did not believe that Arial had
engaged in any further visitation with the children, nor had she demonstrated a
desire to care for the children on a daily basis.
Johnson testified that Arial had been staying in an apartment since
November 2018 and that Johnson had been able to visit the apartment. Johnson
testified that Arial had just provided her a copy of the lease right before trial, and
the lease was set to expire the following month in November 2019. Johnson
testified that, despite the fact that Arial had made some efforts to comply with the
family service plan, she believed Arial’s drug use, especially her drug use while
pregnant with Tayesha and Janet, her criminal activity, and her failure to follow the
family service plan endangered the physical or emotional well-being of the
children. Johnson believed that termination of Arial’s parental rights was in the
children’s best interest, and she testified that it was in the children’s best interest to
allow Ms. Nana to adopt them.
6
Arial also testified at trial. She stated that she had started all of her required
classes at one point but stopped doing them because she got sick, stating, “I got
sick with my blood pressure where I couldn’t go to work and I couldn’t do nothing.
So, like, I stopped doing everything. But then when I started feeling better, I
started going to all my stuff and I started working again. There’s nothing I can help
that I got sick.” Arial testified that she had been living in the apartment since
November 2018. Arial also testified that she had worked “throughout this entire
case,” first at McDonalds and, at the time of trial, at “Labor Ready.”
Regarding the substance abuse allegations, Arial testified that she had not
used marijuana since July 2018, and she testified that she had “never used
cocaine.” Arial admitted that she had an open warrant for her arrest for a violation
of probation and that the underlying offense was assault of family member, which
she got for “fighting [Quick].” Arial also acknowledged that she was on probation
for “killing a dog for fighting with [Quick].”
Arial also testified about her visitation and involvement with the children.
When asked if she had been visiting the children, she answered, “I talk to them. I
visit. I seen him for his birthday.” Arial clarified that when she testified that she
talked to the children, she did that by having a video chat or phone call with Ms.
Nana. She acknowledged that she had visited the children “a very few times over a
year.”
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Finally, DFPS presented evidence of its plans for the children. All of the
children were placed with Quick’s mother, Ms. Nana, and she intended to adopt
them. Jeff and Jane had been living with Ms. Nana for the last five years, with
Johnson testifying that Ms. Nana “basically raised [them] their entire lives, or most
of their lives.” Ms. Nana had also been caring for Tayesha and Janet for the year
leading up to the final termination hearing. Johnson testified that the children were
doing well with Ms. Nana, that she was meeting all their needs, and that she was
willing to keep them and raise them until adulthood “and even past.” Johnson
stated that DFPS did not have any concerns regarding Ms. Nana as a caregiver for
the children. Johnson further testified that she believed Ms. Nana would be
“protective from the parents and do whatever is necessary to keep these kids happy
and healthy.” Ms. Nana also testified that she intended to adopt all four children in
order to provide them stability, love, and “everything else that goes with
parenting.”
The trial court made numerous findings that Arial’s conduct satisfied the
statutorily enumerated predicate findings for termination under Family Code
section 161.001(b)(1), including that she had knowingly placed or knowingly
allowed the children to remain in endangering conditions under subsection (D);
that she had engaged in endangering conduct or knowingly placed the children
with persons who engaged in endangering conduct under subsection (E), and that
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she had failed to comply with the provisions of her court-ordered family service
plan under (O). The trial court further found that termination of Arial’s parental
rights to all four children was in their best interests pursuant to Family Code
section 161.001(b)(2), and it terminated Arial’s parental rights. This appeal
followed.
Factual Sufficiency of Best Interest Finding
In her sole issue on appeal, Arial asserts that the evidence was factually
insufficient to support the trial court’s finding that terminating her parental rights
to all four children was in their best interests.
A. Standard of Review
A trial court may order termination of the parent-child relationship if DFPS
proves, by clear and convincing evidence, one of the statutorily enumerated
predicate findings for termination and that termination of parental rights is in the
best interest of the children. TEX. FAM. CODE § 161.001(b); see In re E.N.C., 384
S.W.3d 796, 802 (Tex. 2012) (stating that federal due process clause and Texas
Family Code both mandate “heightened” standard of review of clear and
convincing evidence in parental-rights termination cases). DFPS must prove both
elements—a statutorily prescribed predicate finding and that termination is in the
children’s best interest—by clear and convincing evidence. In re E.N.C., 384
S.W.3d at 803. The Family Code defines “clear and convincing evidence” as “the
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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; In re E.N.C., 384 S.W.3d at 802.
When a parent challenges the factual sufficiency of the evidence supporting
the trial court’s findings, we review all the evidence, including disputed or
conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). We should
inquire whether the evidence is such that 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). “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 factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” In re J.O.A., 283 S.W.3d at
345 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). In applying this
standard, our review “must not be so rigorous that the only fact findings that could
withstand review are those established beyond a reasonable doubt.” In re H.R.M.,
209 S.W.3d at 108 (quoting In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)); see also In
re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (stating that we must still provide due
deference to decisions of factfinder, which had full opportunity to observe witness
testimony and was sole arbiter of assessing witness credibility and demeanor).
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B. Factors Relevant to Best-Interest Determination
“[T]he 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). There
is a strong, but rebuttable, presumption that the best interest of a child is served by
keeping the child with a parent. TEX. FAM. CODE § 153.131(b); In re R.R., 209
S.W.3d 112, 116 (Tex. 2006) (per curiam); Jordan v. Dossey, 325 S.W.3d 700, 729
(Tex. App.—Houston [1st Dist.] 2010, pet. denied) (noting that parent-child
relationship has constitutional underpinnings, but courts must not sacrifice child’s
emotional and physical interests “merely to preserve that right”).
The Texas Legislature has set out several factors that courts should consider
in determining whether a child’s parent is willing and able to provide the child
with a safe environment, including: (1) the child’s age and physical and mental
vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the
magnitude and frequency of harm to the child; (4) whether the child has been the
victim of repeated harm after the initial intervention by DFPS; (5) whether there is
a history of abusive or assaultive conduct or substance abuse by the child’s family
or others who have access to the child’s home; (6) the willingness of the child’s
family to seek out, accept, and complete counseling services; (7) the willingness
and ability of the child’s family to effect positive environmental and personal
changes within a reasonable period of time; and (8) whether the child’s family
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demonstrates adequate parenting skills, including providing minimally adequate
care for the child’s health and nutritional need, care consistent with the child’s
physical and psychological development, guidance and supervision consistent with
the child’s safety, a safe physical home environment, and an understanding of the
child’s needs and capabilities. TEX. FAM. CODE § 263.307(b).
The Texas Supreme Court has also set out several non-exclusive factors that
we should consider when determining whether the termination of a parent’s rights
is in the child’s best interest, including (1) the child’s desires; (2) the child’s
current and future physical and emotional needs; (3) the current and future physical
danger to the child; (4) the parental abilities of the person seeking custody;
(5) whether programs are available to assist the person seeking custody in
promoting the best interests of the child; (6) the plans for the child by the person
seeking custody; (7) the stability of the home; (8) the acts or omissions of the
parent that may indicate the parent-child relationship is not proper; and (9) any
excuse for acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976); In re A.C., 394 S.W.3d 633, 641–42 (Tex. App.—Houston [1st
Dist.] 2012, no pet.). These factors are not exhaustive, and it is not necessary that
DFPS prove all of these factors “as a condition precedent to parental termination.”
In re C.H., 89 S.W.3d at 27. The absence of evidence concerning some of the
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factors does not preclude a factfinder from forming a firm belief or conviction that
termination is in the children’s best interest. In re A.C., 394 S.W.3d at 642.
Proof concerning the statutory predicate findings under section
161.001(b)(1) does not relieve DFPS of its burden of proving that termination is in
the children’s best interest, but “the same evidence may be probative of both
issues.” In re C.H., 89 S.W.3d at 28. The best-interest analysis may consider
circumstantial evidence, subjective factors, and the totality of the evidence as well
as the direct evidence. In re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio
2015, no pet.). “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.; see In re C.H., 89 S.W.3d at 28 (stating that past performance as
parent “could certainly have a bearing on [parent’s] fitness to provide for” child,
and courts should consider prior history of child neglect in best-interest analysis).
C. Analysis
Multiple factors support the trial court’s finding that termination of Arial’s
parental rights to her four children was in the children’s best interests.
The children’s ages, physical and mental vulnerabilities, and future needs
weigh in favor of termination. At the time of trial, Jeff was seven, Jane was five,
Tayesha was three, and Janet was approximately eighteen months, and there was
no indication in the record regarding their desires. “When children are too young to
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express their desires, the fact finder may consider that the children have bonded
with the foster family, are well-cared for by them, and have spent minimal time
with a parent.” In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.]
2014, no pet.); In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.]
2003, pet. denied). DFPS presented evidence that the children were well-cared for
by Ms. Nana, who had had custody of Jeff and Jane for approximately five years
and of Tayesha and Janet for approximately one year at the time of trial.
Arial argues that the children were also bonded to her as their mother. The
record, however, does not contain significant evidence to support her argument.
DFPS presented evidence that Arial had had minimal involvement with the
children while this case was pending. Johnson testified that Arial attended one visit
set up by DFPS, and Johnson and Arial both testified that Arial attended a birthday
party for Jeff. Furthermore, the children’s young ages render them vulnerable if
left in the custody of a parent unable or unwilling to protect them or to attend to
their needs. See TEX. FAM. CODE § 263.307(b)(1); Holley, 544 S.W.2d at 371–72;
see also In re B.D.A., 546 S.W.3d 346, 361 (Tex. App.—Houston [1st Dist.] 2018,
pet. denied) (holding same when children were seven, five, and four at time of
trial).
Next, we conclude that danger to the children in the past, and evidence
supporting an inference of probably future danger, weighs in favor of the trial
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court’s best-interest finding. DFPS presented evidence that the children were
removed due to Arial’s drug use and history of domestic violence. Arial had
assaulted Quick, the father of two of the children, in 2015, and Arial had killed
Quick’s dog in 2018. The evidence further indicated that Arial had not complied
with the terms of her probation in the assault case, had an open warrant for her
arrest at the time of trial, and would be arrested at the conclusion of the trial. See In
re T.G.R.–M., 404 S.W.3d 7, 15 (Tex. App.—Houston [1st Dist.] 2013, no pet.)
(noting that, each time parent was jailed, parent was absent from child’s life and
unable to provide for child’s physical and emotional needs).
The evidence also demonstrated that Arial’s history of drug use endangered
the children. Both Tayesha and Janet were born with THC in their systems. After
the children were removed from her care, Arial continued to have repeated positive
drug tests during the year the case was pending. See In re S.R., 452 S.W.3d 351,
361–62 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (parent’s continued
drug use when custody of her children is in jeopardy supports finding of
endangerment). Despite her two younger children being born testing positive for
THC and her drug tests showing positive results for cocaine, cocaine metabolites,
and marijuana, Arial denied using marijuana after July 2018, and she denied ever
using cocaine. When the record shows the parent’s drug abuse, the parent’s
unwillingness to admit to having a substance-abuse problem suggests that the
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parent will continue to engage in the same behaviors that endangered the child. In
re L.M., 572 S.W.3d 823, 835 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
Even considering evidence that, for a period of time her drug use appeared
to decrease and that she had a negative drug test in September 2019, the month
before trial, we conclude that the evidence supported the conclusions that the
children would continue to be in danger due to the instability caused by Arial’s
drug use and domestic violence and that her relationship with the children was not
appropriate. See TEX. FAM. CODE § 263.307(b)(8) (providing that history of
substance abuse is relevant to determining children’s best interest); In re D.R.A.,
374 S.W.3d 528, 536 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (considering
failed drug test, among other factors, as evidence that parent-child relationship was
not appropriate).
The frequency and nature of the children’s out-of-home placements, DFPS’s
plans for them, and Arial’s own involvement with the children weighs in favor of
the trial court’s finding. DFPS presented evidence that Jeff had lived with Ms.
Nana for five of his seven years and Jane had lived with Ms. Nana since she was
an infant. The two younger children, ages three and eighteen months at the time of
trial, had lived with their siblings and Ms. Nana for the year leading up to the trial.
The children were happy and doing well with Ms. Nana, who was meeting all their
needs and who intended to adopt them so she could provide the stability and care
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they needed to support them into adulthood. See In re D.M., 452 S.W.3d 462, 471
(Tex. App.—San Antonio 2014, no pet.) (considering, in assessing child’s physical
and emotional needs, that child was “healthy, happy, and well-adjusted” after
approximately eighteen months in care of foster family). Arial argues that Ms.
Nana could have continued to be a stable, protective presence in the children’s
lives, even without terminating Arial’s parental rights. However, Texas courts have
long held that children’s need for a “stable, permanent home” is a paramount
consideration in best-interest determinations. In re K.C., 219 S.W.3d 924, 931
(Tex. App.—Dallas 2007, no pet.).
Arial testified that she talked to the children and had visited with them.
However, the evidence demonstrated that she had participated in minimal visitation
with the children and had not demonstrated a desire or ability to care for the
children. Although she testified that she had maintained stable employment
throughout the pendency of the case, she did not provide any evidence of her
income or hours. Arial also testified that she had an apartment, but there was no
evidence whether the apartment would accommodate the four children or whether
she could continue to live in that apartment when the lease expired in November
2019, one month after trial. There was no evidence that Arial could provide a
stable home, that she had adequate parenting skills, or the ability to provide
minimally adequate care. See In re C.A.J., 122 S.W.3d 888, 893–94 (Tex. App.—
17
Fort Worth 2003, no pet.) (stating that courts may consider parent’s poor judgment
and inability to provide adequate care when determining best interest and that
“[w]ithout stability, income, or a home,” parent was unable to provide for child’s
emotional and physical needs). Thus, viewed in light of the entire record, Arial’s
disputed evidence is not so overwhelming as to weigh against the trial court’s
finding on this basis.
Furthermore, Arial did not demonstrate a willingness or ability to complete
her services or effect positive environmental and personal changes within a
reasonable time. See In re E.A.F., 424 S.W.3d 742, 752 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied) (stating that, in assessing best interest, courts may
appropriately consider whether parent complied with court-ordered family service
plan for reunification with child). Although Arial did complete portions of her
family service plan, and Johnson testified that DFPS had not found anyone who
could provide treatment in accordance with some of the recommendations, there
was nevertheless evidence that Arial did not complete the services offered by
DFPS. Arial testified generally that she became ill with high blood pressure at one
point during the pendency of this case and so could not do anything, but she did
not provide any further evidence regarding the duration of her illness or its impact
on her ability to comply with her family service plan.
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DFPS’s evidence that Arial had not completed the recommendations based
on her domestic violence assessment, including anger management and domestic
violence classes, that she had not completed substance abuse treatment, and that
she had not completed all of her parenting classes after a period of one year,
supported a conclusion by the trial court that she was not willing or able to address
the concerns that had caused the removal of her children in the first place.
Viewing all the evidence, including disputed or conflicting evidence, we
conclude that the trial court could have formed a firm belief or conviction that
termination of Arial’s parental rights was in the children’s best interests. See In re
J.O.A., 283 S.W.3d at 345; In re H.R.M., 209 S.W.3d at 108. We overrule Arial’s
sole issue on appeal.
Conclusion
We affirm the trial court’s decree of termination.
Richard Hightower
Justice
Panel consists of Justices Keyes, Lloyd, and Hightower.
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