Date: 02-10-2016

Case Style: In the Interest of V.H., et al children

Case Number: 04-15-00511-CV

Judge: Rebeca C. Martinez

Court: Texas Court of Appeals for the Fourth Court of Appeal from 166th Judicial District Court of Bexar County

Plaintiff's Attorney: Nicolas A. LaHood and Zachary Gibson Texas Department of Family and Protective Services

Defendant's Attorney: Manuel Charles Rodriguez Jr.
Jeanie Lee Droddy Cupit for Julien Bamba

James Brian Peplinski for Catherine Bamba

Description: C.B., whom we will refer to as “Mother,” appeals from the trial court’s order terminating her parental rights to her four children, V.H., G.B., N.B., and J.B., Jr. J.B., whom we will refer to as “Father,” appeals from the trial court’s order terminating his parental rights to his three children, G.B., N.B., and J.B., Jr. Both Mother and Father complain that the evidence is insufficient to support the trial court’s finding that termination was in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2015). We affirm the judgment of the trial court.

BACKGROUND
Over the course of the two-day bench trial, the following testimony was presented. Angela Brown, the investigator for the Department of Family and Protective Services, testified that she began investigating the family after reports of methamphetamine use in August 2013. Upon visiting the home, Brown found that there was not adequate food in the home. After Mother’s drug test results came back positive, the children were placed with their maternal grandmother and all visits with Mother were required to be supervised.

The Department caseworker, Sharrina Waters, testified that she began working with the family in December 2014. At that time, the children had been returned to Mother’s care for unsupervised weekend visits as part of a “trial” reunification. However, on February 18, 2015, the children were removed once again after both Mother and Father tested positive for amphetamines and methamphetamines. Waters had been informed by Mother and Father that Father put sleeping
pills in Mother’s drink on Valentine’s Day to calm her down; however, he mistakenly put “Narco” pain pills in the drink, and Mother subsequently tested positive for methamphetamines. Father admitted to Waters that “he smoked marijuana because it’s legal in his native country.” Waters was concerned about the parents’ pattern of drug use. Waters also worried that Mother could not guide and control all four children, each of whom has a disability, by herself. Waters felt it was in the children’s best interest for the parents’ parental rights to be terminated because the parents continue to test positive for drugs, the parents have an unstable relationship, and Mother has not demonstrated that she is able to protect the children. Father is often not present to help with the children, and he expressed to Waters that the children should be with Mother. Waters stated that Father did not make himself available for drug tests.

Waters explained that G.B., who was 7 years old at the time of trial, is developmentally delayed. In addition, he is hearing impaired and has ADHD and receives speech therapy. He is very impulsive and needs constant redirection. J.B., age 2 at the time of trial, is developmentally delayed and receives occupational therapy. N.B., age 5 at the time of trial, and V.H., age 13 at the time of trial, both suffer from speech delays and hearing problems. Waters suggested that Mother minimized the children’s disabilities. During the period of time that the children were reunified with their parents, Mother had a meeting with the special education unit of G.B.’s school where Mother described G.B. as a normal child.

At the time of trial, the children were living at a short-term foster facility for special needs children. Waters explained that the maternal grandmother had expressed a desire to adopt the children, but she was ruled out as a permanent placement due to concerns about her boyfriend’s criminal history. Waters stated that the Department was “exploring” one relative to adopt V.H., and that the “concurrent plan will be unrelated adoption.” The Department did not have any adoptive families in mind.

Finally, Waters testified that the parents did not meet the goals of their service plans because they did not successfully complete counseling and did not remain drug free. In addition, the parents did not always have adequate food for the children in the home.

Mother’s therapist, Carlos Nunez, testified that Mother was referred to him due to allegations of domestic violence and drug abuse. According to Nunez, Mother described Father as very abusive, both physically and verbally. During the case, Mother reconciled with Father, despite Nunez’s concerns regarding “the domestic violence, the drug use.” According to Nunez, Mother and Father had an argument around Valentine’s Day and thereafter Mother tested positive for “some type of drug.” After that, Mother failed to attend two counseling sessions and Nunez discharged Mother for noncompliance. Regarding parenting, Nunez thought that Mother had unrealistic expectations of her children. In support of his opinion, he stated that Mother would require V.H., who was 13 years old at the time of trial, to clean the house. Nunez also opined that Mother put her needs first, instead of her children’s. Nunez did not think that Mother had shown enough progress over the almost one year that he worked with her to be protective of herself and her children.

Father testified that Mother uses methamphetamines “off and on” and is not an addict. Father started smoking marijuana when he was seven years old because it is legal in the country where he comes from; however, since coming to the United States ten years ago, he has only used it twice. Father stated he was on probation for assaulting a public servant in 2008; his probation was revoked, and he was confined for two years. Father disagreed that the children had hearing problems, and stated that he has a family history of delayed speech.

Russel Thompson is a psychologist who assessed Mother and Father. Thompson opined that Father was at risk of abusing the children in the future. He stressed that Father has inappropriate expectations of children, a low level of empathy for children, and a tendency to reverse family roles, i.e., he expects the child to meet the parent’s needs. He also suffers from emotional distress and rigidity and lacks appropriate attitudes towards parenting. As a caveat, Thompson stated that Father may have misinterpreted some of Thompson’s questions due to the fact that English is not his native language; he also agreed that some of Father’s attitudes towards child rearing and punishment could be due to cultural differences. Father told Thompson that he had used marijuana and cocaine in the past, and that he had used methamphetamine three months before their visit.

Thompson stated that Mother’s intellectual ability is below average. He similarly testified that Mother is at risk of abusing the children in the future due to her inappropriate expectations of children, a low level of empathy for children, and a tendency to reverse family roles, i.e., expecting the child to meet the parent’s needs. She also suffers from emotional distress and rigidity and lacks appropriate attitudes towards parenting. Thompson was concerned about Mother’s substance abuse. Mother reported to Thompson that there had been problems with domestic violence.

Finally, Mother testified. She admitted that she has a methamphetamine problem and had last smoked methamphetamine one month prior to trial. On cross-examination, however, Mother stated that she is not addicted to methamphetamine and only uses it once a week. She conceded that Father uses methamphetamine as well, and that they do it together when the children are sleeping. She later clarified that she was referencing past use, and has been clean since she last used one month prior to trial. She denied reporting any physical abuse by Father and stated that they have their “ups and downs” like any married couple.

At the conclusion of the testimony, the trial court noted that best interest of the children was an issue of concern and that the case would be taken under deliberation. Thereafter, the trial court signed an order terminating Mother’s and Father’s parental rights pursuant to Texas Family Code sections 161.001(b)(1)(N), (O), and (P). See TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O), (P) (West Supp. 2015). The trial court also found that termination of the parent-child relationship was in the best interest of the children. See id. § 161.001(b)(2). Mother and Father now appeal,
challenging the sufficiency of the evidence to support the trial court’s best interest finding.

DISCUSSION
To terminate parental rights pursuant to section 161.001 of the Family Code, the Texas Department of Family and Protective Services has the burden to prove: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1), (2) (West Supp. 2015); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Both Mother and Father contend the evidence is legally and factually insufficient to establish that termination of their respective parental rights was in the children’s best interest.
Mother and Father do not challenge the sufficiency of the evidence to support the predicate findings, which included findings that they had both:
(N) constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment;
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child;
(P) 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[.]
See TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O), (P).

The applicable burden of proof in a parental termination case is the clear and convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means 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 ANN. § 101.007 (West 2014). There is a strong presumption that keeping a child with a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, when the court considers factors related to the best interest of the child, “the prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2015). In determining whether a child’s parent is willing and able to provide the child with a safe environment, we consider the factors set forth in Family Code section 263.307(b). Id. § 263.307(b) (West Supp.
2015).

In addition, we apply the non-exhaustive Holley factors to our analysis. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Lastly, evidence that proves one or more statutory grounds for termination may constitute evidence illustrating that termination is in the child’s best interest. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such evidence does not relieve the State of its burden to prove best interest). A best interest analysis may consider circumstantial evidence,
subjective factors, and the totality of the evidence as well as the direct evidence. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). The trier of fact may measure a parent’s future conduct by his or her past conduct in deciding whether termination of parental rights is in the child’s best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.).

When reviewing the sufficiency of the evidence, we apply the well-established standard of review. See TEX. FAM. CODE ANN. §§ 101.007, 161.206(a); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (factual sufficiency). Under both standards, the determination of a witness’s credibility and demeanor is made by a trier of fact, and we cannot second guess the fact finder’s resolution of factual disputes.
In re H.R.M., 209 S.W.3d at 108; In re J.P.B., 180 S.W.3d at 573.

While standing alone, the therapist’s conclusory assertions that Mother was not able to protect her children as well as the psychologist’s conjecture that Mother and Father were at risk of abusing the children in the future are not sufficient to support the best interest finding, we conclude that the record as a whole contains sufficient evidence to support the trial court’s best interest finding. In this case, the record undisputedly contains evidence that both Mother and Father engaged in drug use, including smoking crystal methamphetamine, around the children. See C.H.,
89 S.W.3d at 28 (unchallenged predicate findings can support a finding that termination of a parent’s rights is in the child’s best interest). A factfinder can give “great weight” to the “significant factor” of drug-related conduct. In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.). Both parents admitted to occasional drug use and failed to view it as problematic. Evidence of a parent’s drug use and his or her inability to modify drug-related conduct supports a finding that termination is in a child’s best interest. See In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.). In addition, there were concerns about domestic violence in the home. See id. (exposure to domestic violence supports a finding that termination of parental rights is in the child’s best interest). Mother also appeared to have a hard time controlling the children, all four of whom have physical and developmental needs requiring special care. The children’s ad litem unequivocally argued that termination was in the best interest of the children.

Although Mother and Father argue that the lack of a definitive plan by the Department for the children’s permanent adoption weighs against termination, we note that “the lack of evidence about definitive plans for permanent placement and adoption cannot be the dispositive factor [in a best interest analysis]; otherwise, determinations regarding best interest would regularly be subject to reversal on the sole ground that an adoptive family has yet to be located.” In re C.H., 89 S.W.3d at 28. On this record, we conclude the evidence permits a reasonable factfinder to form a firm
conviction or belief that termination of the parent-child relationship was in the children’s best interest. We thus overrule Mother’s and Father’s sole issue on appeal.

Outcome: The trial court’s order is affirmed.

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