In the Interest of C.J.S and S.G.B., Jr., Children.
No. 14-12-00330-CV.
Court of Appeals of Texas, Houston (14th Dist.).
Sept. 20, 2012.
Having sustained SWG‘s only issue on appeal, we reverse the portion of the trial court‘s judgment regarding the award of attorney‘s fees, and we render judgment awarding attorney‘s fees in the following amounts:
$50,000 “for services rendered through trial of this case“;
$25,000 “in the event of an unsuccessful appeal by [Eagle] to the Court of Appeals“;
$20,000 “in the event of [SWG] responding to a Petition for Review to the Supreme Court of Texas“; and
$5,000 “if a Petition for Review is granted by the Supreme Court of Texas.”
We affirm the trial court‘s judgment in all other respects.
Sandra D. Hachem, Houston, TX, for appellee.
Panel consists of Justices BOYCE, CHRISTOPHER, and JAMISON.
OPINION
MARTHA HILL JAMISON, Justice.
This case presents the difficult question that Department1 workers and trial judges face on a daily basis: When children have been successfully placed with a foster family that might adopt, should the State take a chance on a parent who might never be successful? Appellant Latasha J. appeals from the trial court‘s order terminating her parental rights to her sons, C.J.S. and S.G.B. In five issues, she challenges the legal and factual sufficiency of the evidence to support the trial court‘s termination findings. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 17, 2009, Latasha‘s child S.G.B. was admitted into Children‘s Memorial Hermann Hospital with bronchitis. On December 22, the Department received a referral from a social worker at the hospital alleging that S.G.B. was ready to be discharged on December 20 but Latasha had not picked him up and the hospital did not know where she was.
The Department had received an earlier referral on September 20, 2009, from Latasha, alleging neglectful supervision of two-
The Department took C.J.S. and S.G.B. into custody on December 23. The same day, the Department filed an Original Petition for Protection of a Child, for Conservatorship, and for Termination of the Parent-Child Relationship and Application for Writ of Attachment as to C.J.S. and S.G.B. and Request for Temporary Orders. After an ex parte hearing, the trial court entered an emergency protective order making the Department temporary sole managing conservator of the children. The children were placed into a foster home with non-relatives.
On January 4, 2010, the trial court ordered Latasha to comply with the terms of the Departments‘s family service plan. On February 5, Latasha signed the plan, which required, among other things, that she complete domestic violence, anger management, and parenting classes; maintain appropriate housing for the children; undergo psychological and psychiatric evaluations; attend therapy; and submit to random drug testing “with an understanding that every missed test will be considered positive.”3 The parent‘s acknowledgement stated:
I understand the [plan] is a very important document. I understand its purpose is to help me provide my child(ren) with a safe environment within a reasonable time [December 23, 2010]. I understand if I am unwilling/unable to provide my child(ren) with a safe environment, my parental and custodial rights may be restricted or terminated or my child(ren) may not be returned to me.
Latasha gave birth to a third child on May 2, 2011. On May 25, she tested positive for cocaine on a hair follicle drug test. The test results showed she had ingested cocaine “on more than one occasion” in the 90 days before being tested.4 She denied having taken cocaine, but admitted that
At the bench trial on termination of parental rights, Latasha did not seek to be the sole managing conservator of the children, which was consistent with her psychologist‘s recommendation:5 she sought to keep the children in Department custody and to continue attending parenting classes. After trial, in a final termination order signed on March 28, 2012, the trial court terminated Latasha‘s parental rights based on
LEGAL AND FACTUAL SUFFICIENCY CHALLENGE
In five issues, Latasha challenges the legal and factual sufficiency of the evidence supporting the trial court‘s termination findings.
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Due to the severity and permanency of the termination of parental rights, the burden of proof at trial is heightened to the clear and convincing standard. See
When determining legal sufficiency, we review “all the evidence in the light most favorable to the [court‘s] 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 at 266. To give appropriate deference to the factfinder‘s conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. However, this does not mean that we must disregard all evidence that does not support the finding. Id. Because of the heightened standard, we must also be mindful of any undisputed evidence con-
When reviewing a factual sufficiency challenge under the clear and convincing burden, the analysis is somewhat different in that we must consider all of the evidence equally, both disputed and undisputed. See id. We must consider whether the evidence is sufficient to produce in the mind of the factfinder a firm belief or conviction as to the truth of the allegation sought to be established. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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.
In a proceeding to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, the petitioner must establish, by clear and convincing evidence, one or more acts or omissions enumerated under subsection (1) of 161.001 and that termination is in the best interest of the child under subsection (2).
On appeal, the Department contends that the grounds for termination are legally and factually sufficient under sections 161.001(1)(D), (E), and (O). We need only determine if the evidence is legally and factually sufficient to support a single basis for termination.7 See
I. Endangering Conduct
Subsection (E) permits termination of parental rights when the parent has either personally engaged in conduct that endangers the child or knowingly placed the child with another person who engaged in dangerous conduct.
Termination must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. Id. The requisite endangerment may be found if the evidence shows a parent‘s course of conduct that has the effect of endangering the child‘s physical or emotional well-being. Id. (citing Boyd, 727 S.W.2d at 534). In considering whether a relevant course of conduct has been established, a court properly may consider evidence establishing that a parent continued to engage in endangering conduct after the child‘s removal by the Department or after the child no longer was in the parent‘s care,
After the Department removed her two eldest children and three weeks after giving birth to her third child, Latasha tested positive for cocaine usage on a hair follicle test. The test results indicated Latasha used cocaine more than once in the 90 day period before she took the test. See In re C.A.B., 289 S.W.3d at 883 (“Termination under subsection 161.001(1)(E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required.“). The test results did not show whether Latasha actually used cocaine while she was pregnant, but, if not, they indicate she used cocaine while she was taking care of her newborn infant. However, Latasha denied using cocaine, and Cory told a Department investigator that Latasha did not use drugs. C.J.S. and S.G.B. had been removed from Latasha‘s home by this point, but whether they were present at the time of the misconduct is not germane to our analysis. See id. Latasha also signed the family plan, which required her to submit to random drug testing “with an understanding [of the Department‘s policy] that every missed test [would] be considered positive.” The Department also explained that policy to her, and she admitted that she understood the policy. Although Latasha completed several negative drug tests, she also missed four or five drug tests, citing scheduling and transportation issues. We have previously held, under similar circumstances, that “[a] factfinder reasonably could infer that [a parent‘s] failure to submit to the court-ordered drug screening indicated she was avoiding testing because she was using drugs.” Id. at 885 (finding evidence of endangerment sufficient when mother had one prior conviction for possession of marijuana, one prior conviction for possession of methamphetamines, failed one drug test, and failed to submit to random drug tests).
Latasha also was evaluated by a Department social worker who reported, “There is concern that [Latasha] has some impairment to her judgment and ability to care for two young and vulnerable children.” Her psychologist reported she had “impulsive tendencies, ... limited comprehension of problem situations” and would “need the assistance and monitoring of another responsible adult to assist with childcare decisions, assuring appropriate and effective child care, and assisting with daily decisions regarding homemaking.” He also testified Latasha “might have some difficulty assessing problem situations accurately and determining some effective solutions” and recommended that “her parenting would best be suited to being supportive [sic] by another responsi-
Several incidents that occurred after the children were taken into Department custody reflect Latasha‘s poor judgment and lack of impulse control. Latasha completed anger management classes in September 2010. Around that time, she “was involved in an altercation with another female” over a male.9 In June 2011, Latasha told a therapist that she “did not know what she would do if she [lost] custody of her children,” but she might “end up doing something... that would result in her being in jail.” The therapist was concerned Latasha might hurt herself or others. On a later occasion, Latasha expressed anger towards her caseworker. When the therapist asked if she would hurt herself or others, Latasha responded, “I don‘t know.” By way of excuse, Latasha testified that she was expressing anger toward the Department because “they wanted to terminate [her] rights to [the children].” Based on her concerns that Latasha might hurt herself or others, the therapist recommended that Latasha not be reunited with her children. In August 2011, Latasha‘s psychiatrist reported that Latasha “became very defensive” when confronted with missed appointments and “became angry” when she was confronted with a Department caseworker‘s “email about her homicidal ideations.” She was also “very argumentative.” In December 2011, during a visit to her therapist‘s office, Latasha “became very excitable” when she checked in. The front desk clerk asked Latasha for her Texas driver‘s license, and a supervisor was called when Latasha could not produce it. The supervisor aggressively questioned Latasha several times as to why she did not have identification, and Latasha entered her therapy session “very defensive and angry.”
Viewing the evidence in the light most favorable to the trial court‘s finding for purposes of our legal sufficiency review and all the evidence equally for purposes of our factual sufficiency review, we hold that the trial court could have formed a firm belief or conviction that Latasha engaged in a continuing course of conduct that endangered the well-being of C.J.S. and S.G.B. based on her repeated use of cocaine while she was pregnant or taking care of a newborn, multiple failures to submit to drug testing, and lack of impulse control. See In re C.A.B., 289 S.W.3d at 885; see also In re A.I.G., 135 S.W.3d 687, 693 (Tex. App.—San Antonio 2003, no pet.) (holding evidence of endangerment due to mother‘s “inability to control her impulses and cope with anger” legally and factually sufficient to support finding that termination was in best interest of children). Accordingly, we conclude that the evidence is legally and factually sufficient to support the trial court‘s finding that Latasha engaged in conduct under subsection (E) that endangered the emotional well-being of her children.10 See In re C.A.B., 289 S.W.3d at 885.
II. Best Interest of the Children
Latasha also challenges the legal and factual sufficiency of the trial court‘s finding that termination was in the children‘s best interest pursuant to
There is a strong presumption that the best interest of the child is served by keeping the child with his or her natural parent, and the burden is on the Department to rebut that presumption. In re S.N., 287 S.W.3d at 191. To rebut this presumption, there must be clear and convincing evidence of the natural parent‘s present unfitness. In re U.P., 105 S.W.3d at 230. The same evidence of acts or omissions used to establish grounds for termination under section 161.001(1) may be probative in determining the best interest of the child. In re S.N., 287 S.W.3d at 191. In reviewing the sufficien-
Desires of the children. C.J.S. was five-years-old and S.G.B. was almost three-years-old at the time of trial. No evidence was presented regarding their desires with respect to Latasha. Thus, this does not factor into our analysis.
Present and future physical and emotional needs of the children. Regarding this factor, we note that the need for permanence is a paramount consideration for the child‘s present and future physical and emotional needs. In re D.R.A., 374 S.W.3d 528, 532-33 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The goal of establishing a stable, permanent home for a child is a compelling government interest. Id. The children had been placed in a foster home for 27 months, a large part of their young lives, at the time of trial. They had been in the same foster home for the entire duration.
The children suffered from frequent ear infections after they were taken into Department custody. They both had tubes surgically inserted into their ears. S.G.B.‘s tonsils also were removed and his adenoids were clipped. C.J.S. suffers from “mood disorder and A.D.H.D.”11 At the time of trial, he attended therapy twice a month and visited a psychiatrist once a month. S.G.B. is a “special needs child.” Both children were suspended from day-care twice, but C.J.S. was in kindergarten at the time of trial and had not had any problems in school. Both Latasha and the children‘s foster parents had had difficulty controlling the children‘s behavior, but the
Present and future emotional and physical danger to the child. To “endanger” means to expose the child to loss, injury, or danger. Id. at 534. The endangering conduct does not have to occur in the presence of the child. Id. We consider in particular, under the facts of this case, the young age and mental vulnerabilities of the children, as set forth above, along with Latasha‘s substance abuse. See
Parental abilities. This factor takes into account the parental abilities of the person attempting to avoid termination. See In re D.R.A., 374 S.W.3d at 534-35; see also In re U.P., 105 S.W.3d at 231. The children lived with Latasha until they were taken into the Department‘s custody, although C.J.S. lived with his father for a short period of time after Cory “took” his son from Latasha. Latasha attended parenting classes and visited her children “20 or more” times after they were in Department custody, but missed approximately
During visits, Latasha sometimes had a hard time controlling the children, and the social worker had to intervene. Latasha also called the children “stupid” during one of her visits when the children ran out of the office.13 Some, but not all, of Latasha‘s visits with the children were chaotic. The social worker was concerned, based on Latasha‘s interaction with the children and their special needs, that Latasha would be unable to care for the children.
Over the 27-month period that the Department‘s case had been pending by the time of trial, Latasha was unable to become a self-sufficient parent. One psychologist determined that she “has some limited abilities or adequacy for taking care of herself or taking care of children, young children in particular, on her own” that “would be best suited to being supportive [sic] by another responsible, reliable adult in the picture who can assist with monitoring and making child care decisions.” One of Latasha‘s therapists testified that she should have made more progress over the course of the counseling sessions she attended and thought that “reuniting with her children was a bad idea” at the time her counseling sessions with Latasha ended. Moreover, as set forth above, Latasha‘s psychologist who testified for her at trial could not recommend that Latasha have managing conservatorship of the children: “I was not making recommendation that the children go home at this time, but I do think that this family needed to have more support to allow the children and the mother to develop community support and to be able to reunite this family.”
The family service plan identified several tasks for Latasha to complete. One goal of the plan was for Latasha to provide her children “with a safe environment within a reasonable time” by the plan‘s target date of December 23, 2010. Based on the evidence that Latasha had not become a self-sufficient parent by the time of
To determine whether Latasha would be an able parent, the factfinder was entitled to consider Latasha‘s lack of parenting skills with regard to her “special needs” children and her failures to comply with significant aspects of the family plan. See In re D.R.A., 374 S.W.3d at 534-35; see also In re S.N., 287 S.W.3d at 192. This factor also weighs in favor of the trial court‘s finding that termination was in the best interest of the children.
Available programs. This factor takes into account assistance programs available to the person seeking to avoid termination in promoting the best interest of the child. In re D.R.A., 374 S.W.3d at 535-36. Latasha had access to the WIC program to meet the children‘s dietary needs, along with her monthly Social Security checks. The rent for her tidy, two-bedroom apartment is $168 per month.14 She also attended a church that offered programs for single parents, daycare, GED classes, and family events. Even with the benefit of all these programs, her psychologist witness testified she was not ready to reunite with her children. This factor also weighs in favor of the trial court‘s finding.
Plans for the Child by Parent Seeking to Avoid Termination or Agency Seeking Custody and Stability of the Home or Proposed Placement. These two factors compare the agency‘s plans and proposed placement of the child with the plans and home of the parent seeking to avoid termination. Id. Latasha intended to provide for her children through her Social Security checks, income from medical studies, and access to WIC, Medicaid, and food stamps. She found schools and daycares available to the children near her home. She also found programs available to C.J.S. for his A.D.H.D. and mood disorder and found a pediatrician for the children. She had a car at the time of trial. The foster family that had custody of the children for 27 months before trial apparently wishes to adopt them, which is the Department‘s recommendation. See In re C.H., 89 S.W.3d at 28 (noting evidence about placement plans and adoption are relevant to best interest but must be considered in context of entire record). The trial court reasonably could have formed a firm belief or conviction that the Department‘s—as opposed to Latasha‘s—plans for the children were in their best interest.
Acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate and any excuses for acts or omissions. We finally consider Latasha‘s acts or omissions and any excuses for her acts or omissions. As set forth above, Latasha left S.G.B. in the hospital for two days after he was discharged. She explained that she did so because she did not have transportation or anyone to care for C.J.S. Also, she explained that she did not know S.G.B. was
Viewing the evidence in the light most favorable to the judgment for our legal sufficiency analysis and all of the evidence equally for our factual sufficiency analysis, we conclude that a reasonable factfinder could have formed a firm belief or conviction that the best interest of the children would be served by termination of Latasha‘s parental rights. We therefore find the evidence legally and factually sufficient to support the trial court‘s finding.
We overrule Latasha‘s factual and legal sufficiency challenges to the trial court‘s findings. We affirm the judgment of the trial court.
Notes
I want to make this very clear. I was not making recommendation that the children go home at this time, but I do think that this family needed to have more support to allow the children and the mother to develop community support and to be able to reunite this family. I do think that there was a premature decision to have this case go to another placement.