in the Interest of J. B-F, a Child

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-18-00181-CV

In the INTEREST OF J. B.-F., a Child

From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2017-PA-00460 Honorable Antonia Arteaga, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: July 25, 2018

AFFIRMED

Anna 1 appeals the trial court’s order terminating her parental rights to her son J.B.-F.

Anna’s sole issue on appeal is that there is legally and factually insufficient evidence that

termination of her parental rights is in the child’s best interest. We affirm the trial court’s order.

BACKGROUND

J.B.-F. was born March 1, 2017, with THC 2 in his system. At the time, Anna was in an

early intervention program with the Department of Family and Protective Services as the result of

a referral involving an older child. On March 6, the Department filed an original petition for

1 To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to appellant by a fictitious name and refer to children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b)(2). 2 THC, or tetrahydrocannabinol, is the “psychoactive ingredient responsible for euphoriant and hallucinogenic properties of the plant [Cannabis sativa L.] and its products,” including marihuana. Few v. State, 588 S.W.2d 578, 581 (Tex. Crim. App. 1979). 04-18-00181-CV

conservatorship of J.B.-F. and to terminate Anna’s parental rights. 3 The trial court granted the

Department temporary conservatorship of J.B.-F., but he was allowed to stay with Anna, who had

voluntarily entered an inpatient treatment center.

Anna completed inpatient treatment, and she and J.B.-F. moved in with a relative. Anna

entered the Lifetime Outpatient Recovery program, where she was progressing well. However, in

September 2017, Anna asked the Department to place J.B.-F. in foster care because she “could not

provide for him.” She subsequently tested positive for cocaine and disclosed that she was living in

a “trap house,” where she and others packaged and sold cocaine. On October 13, 2017, the trial

court signed an order that Anna have no contact with J.B.-F. until further ordered. The trial court

later ordered Anna could have supervised visitation with J.B.-F. until such time as she completed

her service plan and was able to provide a safe and stable environment. However, Anna moved to

Hawaii in November 2017, where she remained until trial. At the time of trial, Anna was living

with a friend and enrolled in an outpatient program, and Anna testified she had been “clean” since

the end of November. But she had not visited with J. B.-F. for five months.

The case was tried to the court in March 2018. The witnesses included Anna’s caseworker

in early intervention, Ruchi Rodriguez, the legal worker assigned to this case, Katy Walston,

Anna’s counselor at Lifetime Recovery, Anna, and the friend with whom Anna was living in

Hawaii at the time of trial. After the bench trial, the court found by clear and convincing evidence

that Anna:

engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;

constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department for not less than six months and (1) the Department has made reasonable efforts to return the child to the mother; (2) the mother has not regularly visited or maintained significant contact with the child;

3 The record establishes that J.B.-F.’s father was shot and died in January 2017.

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and (3) the mother has demonstrated an inability to provide the child with a safe environment;

failed to comply with the provisions of a court order that specifically established the actions necessary for the mother 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;

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 (1) failed to complete a court-ordered substance abuse treatment program; or (2) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance; and

[was] the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription, as defined by § 161.001(a)(1) and § 161.001(a)(2).

See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (N), (O), (P), (R) (West Supp. 2017). The trial

court also found that termination of her parental rights is in the child’s best interest. See id.

§ 161.001(b)(2). On appeal, Anna does not contest the statutory grounds for termination, but

argues that there is legally and factually insufficient evidence to support the trial court’s finding

that termination of her parental rights is in J.B.-F.’s best interest.

STANDARD OF REVIEW

The trial court’s order of termination must be supported by clear and convincing evidence.

Id. § 161.001(b). Clear and convincing evidence is “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.” Id.

§ 101.007 (West 2014). To determine whether this heightened burden of proof was met, we

employ a heightened standard of review to determine whether a “factfinder could reasonably form

a firm belief or conviction about the truth of the State’s allegations.” In re C.H., 89 S.W.3d 17, 25

(Tex. 2002). “This standard guards the constitutional interests implicated by termination, while

retaining the deference an appellate court must have for the factfinder’s role.” In re O.N.H., 401 -3- 04-18-00181-CV

S.W.3d 681, 683 (Tex. App.—San Antonio 2013, no pet.). We do not reweigh issues of witness

credibility but defer to the factfinder’s reasonable credibility determinations. In re J.P.B., 180

S.W.3d 570, 573 (Tex. 2005).

When we review for legal sufficiency, 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, and we disregard all evidence that a reasonable factfinder could have disbelieved or found

to have been incredible. Id. When conducting a factual sufficiency review, we evaluate “whether

disputed evidence is such that a reasonable factfinder could not have resolved that disputed

evidence in favor of its finding.” Id. The evidence is factually insufficient “[i]f, 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.” Id.

Under Texas law, there is a strong presumption that the best interest of a child is served by

keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam).

However, a court must also presume that “the prompt and permanent placement of the child in a

safe environment is . . . in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a) (West

Supp. 2017). In making a best-interest determination, the factfinder looks at the entire record and

considers all relevant circumstances. See In re C.H., 89 S.W.3d at 27-29. And, in determining

whether the child’s parent is willing and able to provide the child with a safe environment, a court

should consider the factors set out in section 263.307 of the Family Code. See TEX FAM. CODE

ANN. § 263.307(b). In addition to these statutory factors, a court may consider evidence about the

desires of the child; the emotional and physical needs of the child now and in the future; the -4- 04-18-00181-CV

emotional and physical danger to the child now and in the future; the parental abilities of the

individuals seeking custody; the programs available to assist these individuals to promote the best

interest of the child; the plans for the child by these individuals or by the agency seeking custody;

the stability of the home or proposed placement; the acts or omissions of the parent which may

indicate that the existing parent-child relationship is not a proper one; and any excuse for the acts

or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); accord In re C.H.,

89 S.W.3d 17 at 27. These factors are not exhaustive, and not every factor must be proved to find

that termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27. Evidence of a single

factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination

is in the child’s best interest—especially when the evidence shows the parental relationship

endangered the child’s safety. Id. at 28. And, although the mere fact that an act or omission

occurred in the past does not establish that termination is currently in the child’s best interest, a

parent’s past conduct is probative of her future conduct when evaluating the child’s best interest.

See id.; In re O.N.H., 401 S.W.3d at 684.

DISCUSSION

Department employees Ruchi Rodriguez and Katy Walston both testified Anna has not

shown the ability to apply the lessons she was taught in treatment and services and has not

adequately addressed the issues that resulted in J.B.-F.’s removal in the first instance. Rodriguez

was Anna’s caseworker in the early intervention program involving Anna’s older son, from 2015

to 2017. Rodriguez testified J.B.-F.’s father was a perpetrator of domestic violence, and although

Anna completed domestic violence services and was counseled repeatedly about maintaining

healthy relationships and to stay away from the father, she returned to her abuser, continued the

unhealthy relationship, and had another child — J.B.-F. — with him. As part of her plan in this

case, Anna was required to participate in counseling to address domestic violence, but she failed -5- 04-18-00181-CV

to do so. During the pendency of this case, Anna filed a police report alleging she had been

assaulted by a man. There was evidence the perpetrator was the son of the person with whom Anna

was living, but Anna testified she did not consider it an incident of domestic violence because she

was not in a sexual relationship with the man. She also testified she did not believe she needed

further domestic violence counseling because she had completed a class in her previous case. See

TEX. FAM. CODE ANN. § 263.307(b)(7) (in determining whether parent can provide safe

environment, court should consider history of abuse or assaultive conduct by persons who have

access to child’s home).

Caseworker Walston testified Anna has not shown she is able to stay drug-free outside of

an intensive treatment program. When J.B.-F. was born in March 2017, Anna was in an early

intervention program; nevertheless, she smoked marijuana during her pregnancy, and J.B.-F. had

THC in his system at birth. When Anna tested positive for cocaine in early October 2017, she had

successfully completed an inpatient drug treatment program and was close to being successfully

discharged from an outpatient program. Anna contends the test was not really positive, as

evidenced by a negative result on a test administered forty-five minutes later. She explained to her

caseworker the positive result was probably because she was packaging and selling cocaine, and

it was flying around in the air. She admitted to her caseworker she was living in a home with a

large group of people who were dealing drugs. Further, Anna admitted in her testimony that she

used illegal drugs as late as the end of November 2017. After being unsuccessfully discharged

from the first outpatient program because of the positive drug test, she waited several months, until

she moved to Hawaii, to enroll in another program. At the time of trial, Anna had completed an

intensive outpatient program in Hawaii and was engaged in a regular outpatient program.

Caseworker Walston testified that she verified Anna’s participation and that Anna was receiving

counseling as part of the program, was participating in AA and NA, and had tested negative on -6- 04-18-00181-CV

rapid drug screens since her initial intake. Walston acknowledged that Anna was making progress,

but opined that Anna had not yet shown an ability to remain drug free and keep her child safe in a

safe environment when she was not in intensive treatment. “A parent’s drug use supports a finding

that termination is in the best interest of the child. The factfinder can give ‘great weight’ to the

‘significant factor’ of drug-related conduct.” In re L.G.R., 498 S.W.3d 195, 204–05 (Tex. App.—

Houston [14th Dist.] 2016, pet. denied) (citation omitted); see TEX. FAM. CODE ANN.

§ 263.307(b)(8) (court should consider history of substance abuse in determining parent’s ability

to provide safe environment).

Caseworker Walston testified Anna’s family service plan required her to take parenting

classes that addressed drug use, domestic violence in relationships, stable housing, and income,

and then demonstrate that she understands how these issues are critical to caring for a child.

Although Anna testified she took a parenting class while in Hawaii, Walston testified the class did

not meet the Department’s requirements because it was an online course that was only several

hours long and the curriculum was addressed to co-parenting after a divorce. Moreover, Anna was

unable to demonstrate anything she might have learned in the class because she had not visited

J.B.-F. since moving to Hawaii. Anna’s failure to demonstrate adequate parenting skills supports

the trial court’s finding. See TEX. FAM. CODE ANN. § 263.307(b)(12).

Anna’s failure to address her own mental health needs also supports the trial court’s

finding. See id. § 263.307(b)(6), (10). The psychologist who evaluated Anna at the beginning of

the case found she suffered from anxiety, depression, and a mood disorder, and recommended she

obtain a psychiatric evaluation and engage in any recommended treatment. Walston testified she

had not received any evidence that Anna had obtained a psychiatric evaluation. When asked

whether she was engaged in psychiatric treatment, Anna responded that she was going to AA and

NA and “speak[ing] with positive people.” -7- 04-18-00181-CV

Walston testified that Anna had not established either stable employment or housing and

thus had not shown she could meet J.B.-F.’s needs. Anna testified she was living with a friend in

Hawaii and was working two jobs, which she had had since January 2018. Anna testified she

worked at IHOP and as a home health provider. Caseworker Walston testified Anna had sent her

a pay stub from IHOP, and she had verified Anna was working there, but that she had only seen

two paychecks since Anna moved to Hawaii. Anna testified that she paid her friend rent and

contributed food stamps, and that there was a room available for J.B.-F. Anna’s friend testified he

had been supporting Anna while she attended classes and therapy, provided her a place to live, and

helped her get transportation. He testified Anna had “been pretty much doing everything else on

her own.” However, Anna herself testified that she knew she was “not stable at the moment.”

Walston testified that Anna had not shown the ability to maintain stable housing because she was

in and out of the homes of friends and family or in inappropriate housing throughout the entire

case.

At the time of trial, J.B.-F. had just turned one year old and was thus too young to express

his desires. In that circumstance, the factfinder may consider whether the child has bonded with a

foster family, is well cared for by them, and has spent minimal time with the parent. In re M.C.L.,

No. 04-17-00408-CV, 2017 WL 5759376, at *3 (Tex. App.—San Antonio Nov. 29, 2017, no pet.)

(mem. op.). Caseworker Walston testified J.B.-F.’s older brother had been adopted by his foster

family after Anna voluntarily relinquished her parental rights. J.B.-F. was placed in the same home

in October 2017. Walston testified the child had bonded to his foster parents. She testified the

foster parents were meeting J.B.-F.’s needs and they wanted to adopt him, and that she saw no

barriers to their adopting him.

There is evidence that Anna had a strong bond with J.B.-F. until she asked he be placed in

foster care, when he was six months old. Walston testified she met with Anna after J.B.-F. was -8- 04-18-00181-CV

placed in foster care and explained to her that it was important for her to visit with him, maintain

the bond, and support him. To do this she would need to test clean and obtain stable housing.

Nevertheless, Anna chose to move to Hawaii, which prevented her from visiting the child. At the

time of trial, she had not had a visit with him for over five months, and Walston testified the child

no longer had any bond with Anna. Anna did not provide any kind of support during her absence,

and assuming she learned parenting skills, her absence prevented her from being able to

demonstrate them.

Having reviewed all of the evidence, we hold a reasonable factfinder could have formed a

firm belief or conviction that termination of Anna’s parental rights is in J.B.-F.’s best interest. We

therefore affirm the trial court’s order.

Luz Elena D. Chapa, Justice

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