in the Interest of v. G., Children

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00802-CV

In the Interest of V.G., Y.G., R.G., M.G., R.G., A.G., and A.G., Children

From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2013-PA-02840 Honorable Richard Garcia, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice Luz Elena D. Chapa, Justice Jason Pulliam, Justice

Delivered and Filed: April 8, 2015

AFFIRMED

Bethany appeals the trial court’s order terminating her parental rights to her child, Allison.1

We affirm.

BACKGROUND

Bethany gave birth to Allison in a hospital. Immediately following her birth, Allison tested

positive for cocaine. Allison also exhibited symptoms of withdrawal, including vomiting, jerking

movements, and an inability to sleep.

Hospital staff notified the Department of Family and Protective Services, which

immediately filed a petition for protection of a child, for conservatorship, and for termination of

1 We use fictitious names to refer to the mother and the child to protect the child’s identity. See TEX. R. APP. P. 9.8(b)(2). 04-14-00802-CV

parental rights. The Department’s petition initially included Allison and her six older siblings;

however, the Department later nonsuited its action as to the other children. The Department’s

petition sought termination on fifteen different grounds, including that Bethany had been the cause

of Allison being born addicted to a controlled substance in violation of section 161.001(1)(R) of

the Texas Family Code. The matter was tried to the court.

The Trial

Two witnesses testified at trial, a Department caseworker and Bethany.

1. The Caseworker’s Testimony

The caseworker testified that Allison tested positive for cocaine at the time of her birth.

For the first three or four months of her life, Allison suffered from symptoms of withdrawal,

including vomiting, jerking movements, and an inability to sleep. The caseworker attempted to

talk to Bethany about her drug use, but Bethany denied a pattern of drug use and said her drug use

was a “one-time thing.” In order for Allison to have been born addicted to cocaine, Bethany had

to have engaged in frequent cocaine use; it could not have been a “one-time thing” as Bethany had

claimed. Bethany told the caseworker that the cocaine she used was given to her by her husband.

The caseworker prepared a service plan for Bethany and explained the service plan to her.

The caseworker was certain that Bethany understood the service plan, which required Bethany to

participate in drug assessment and treatment, parenting classes, therapy sessions, a psychological

assessment, random drug testing, domestic violence classes, and parent-child visits. The

Department started in-home individual counseling for Bethany, but the counseling ceased after

Bethany left town for a month and a half. The Department also arranged for in-home parenting

classes for Bethany, but this referral was made during the period that Bethany was out of town and

the coordinator of the classes eventually stopped trying to contact her. Bethany submitted to ten to

twelve drug tests during the course of the case, all of which were negative. Bethany did not -2- 04-14-00802-CV

participate in drug assessment, drug treatment, a psychological assessment, or parenting classes.

In fact, Bethany did not complete any component of the service plan. The caseworker was

somewhat skeptical of Bethany’s claim that she was unable to find transportation to engage in the

services on her service plan because Bethany had two older children who were able to provide her

transportation to other places.

About a month before trial, Bethany’s visits with Allison ceased. The court ordered the

visits stopped because Allison would cry for the entire visit.

By the time of trial, Allison was almost ten months old. Allison was no longer suffering

from withdrawal symptoms, but she did have some motor skill delays and was receiving physical

therapy to help her walk.

Allison had been placed with a foster family and this placement was stable. The

Department’s long-term goal was adoption by the foster family. The caseworker acknowledged

that Bethany had a home, but she also stated that she had not been able to visit this home because

Bethany’s husband had made threats to the Department.

Finally, the caseworker believed that termination of Bethany’s parental rights was in

Allison’s best interest because none of the original circumstances that had caused Allison to come

into the Department’s care had been resolved. The caseworker felt it was in Allison’s best interest

to remain in her current, stable placement.

2. Bethany’s Testimony

Bethany testified that the last time she used cocaine was when she gave birth to Allison.

Bethany indicated that this was the only time she used cocaine during her pregnancy with Allison.

Bethany’s husband had provided her the cocaine. Bethany explained that she had used cocaine

while she was pregnant because she was “desperate” “of things that [she] was feeling and [she]

was not able to speak to anyone.” Bethany acknowledged that the Department offered her a service -3- 04-14-00802-CV

plan to help her with these issues. Bethany indicated she did not take the steps necessary to help

herself get better because she did not have anyone to take her to appointments, except for her

daughters. Bethany pointed out that her daughters had their own children so they could not take

her to appointments all the time. Bethany admitted that Allison was not the only child that Bethany

had given birth to who was born drug-positive; one of Allison’s older siblings was also born drug-

positive. Nevertheless, Bethany denied that she had a pattern of using drugs while she was

pregnant. Bethany did not believe that she had a problem with drugs. Bethany said she was aware

of the suffering that Allison went through because of Bethany’s drug use. Bethany’s husband had

moved out of their home about a month before the trial, but he was still supporting Bethany

financially. Bethany felt that she would be able to care for Allison if she was returned to her.

Bethany was aware of Allison’s behavior during and after their visits, including Allison’s

uncontrollable crying. Bethany said she would deal with Allison’s behavior with patience and she

would “give it time.” Bethany also stated that she takes care of her other children, all of whom

were in school.

The Termination Order

Thereafter, the trial court signed an order terminating Bethany’s parental rights on six

different grounds: (1) that Bethany knowingly placed the child or allowed the child to remain

in conditions or surroundings that endangered her physical or emotional well-being

[§ 161.001(1)(D)]; (2) that Bethany engaged in conduct or knowingly placed the child with persons

who engaged in conduct that endangered her physical or emotional well-being [§ 161.001(1)(E)];

(3) that Bethany knowingly abandoned the child who had been in the temporary managing

conservatorship of the Department for six months [§ 161.001(1)(N)]; (4) that Bethany failed to

comply with provisions of a court order that established the actions necessary for her to obtain the

return of the child [§ 161.001(1)(O)]; (5) that Bethany used a controlled substance in a manner -4- 04-14-00802-CV

that endangered the health or safety of the child [§ 161.001(1)(P)]; and (6) that Bethany had been

the cause of the child being born addicted to a controlled substance [§ 161.001(1)(R)]. The trial

court also found that termination of Bethany’s parental rights was in the child’s best interest.

The Appeal

On appeal, Bethany argues that the evidence was legally and factually insufficient to

support the trial court’s findings as to each of the grounds for termination listed in the trial court’s

order and to support the trial court’s finding that termination was in the child’s best interest.

PARENTAL TERMINATION REQUIREMENTS

Termination of parental rights under section 161.001 of the Texas Family Code requires

proof by clear and convincing evidence that the parent committed one of the acts or omissions

listed in section 161.001(1)(A)-(T) and that termination is in the child’s best interest. TEX. FAM.

CODE ANN. § 161.001(1), (2) (West 2014); In the Interest of A.V., 113 S.W.3d 355, 362 (Tex.

2003). Only one predicate finding under section 161.001(1) is necessary to support a termination

order when there is also a finding that termination is in the child’s best interest. A.V., 113 S.W.3d

at 362.

In determining the child’s best interest, courts consider the following non-exclusive

factors: (1) the emotional and physical needs of the child now and in the future; (2) the emotional

and physical danger to the child now and in the future; (3) the parental abilities of the individuals

seeking custody; (4) the programs available to assist these individuals to promote the best interest

of the child; (5) the plans for the child by these individuals or by the agency seeking custody; (6)

the stability of the home or proposed placement; (7) the acts or omissions of the parent which may

indicate that the existing parent-child relationship is not a proper one; and (8) any excuse for the

acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also

In the Interest of C.H., 89 S.W.3d 17, 27 (Tex. 2002). There is no requirement that evidence be -5- 04-14-00802-CV

presented as to each of these factors. See C.H., 89 S.W.3d at 27. “The absence of evidence about

some of these considerations would not preclude a factfinder from reasonably forming a strong

conviction or belief that termination is in the child’s best interest, particularly if the evidence were

undisputed that the parental relationship endangered the safety of the child.” Id. The same evidence

proving acts or omissions under section 161.001(1) of the Texas Family Code may be probative

of the child’s best interest. Id. at 28.

STANDARDS OF REVIEW

A review of legal sufficiency in a case with a clear and convincing evidence standard

requires a court to “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 the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). 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 be incredible.

Id. If we determine that no reasonable factfinder could form a firm belief or conviction that the

matter that must be proven is true, then we must conclude the evidence is legally insufficient. Id.

In a factual sufficiency review, we give due consideration to evidence that the factfinder

could reasonably have found to be clear and convincing. Id. Evidence is factually sufficient under

a clear and convincing evidence standard if “a fact finder could form a firm belief or conviction

about the truth of the [Department’s] allegations.” C.H., 89 S.W.3d at 25. We must consider

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

evidence in favor of its finding. 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. -6- 04-14-00802-CV

DISCUSSION

A court may order termination of the parent-child relationship if it finds by clear and

convincing evidence that the parent has been 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 section 261.001 of the Texas Family Code. TEX. FAM. CODE ANN. § 161.001(1)(R).

Under section 261.001, “born addicted to [] a controlled substance” means a child: (a) who is born

to a mother who during the pregnancy used a controlled substance as defined by chapter 481 of

the Texas Health and Safety Code; and (b) who, after birth as a result of the mother’s use of the

controlled substance, experiences observable withdrawal from the controlled substance, or exhibits

observable or harmful effects in the child’s physical appearance or functioning. See TEX. FAM.

CODE ANN. § 261.001(8)(A),(B)(i),(ii) (West 2014). Cocaine is a controlled substance under

chapter 481 of the Texas Health and Safety Code. TEX. HEALTH & SAFETY CODE ANN. §

481.102(3)(D) (West 2010).

As a preliminary matter, Bethany argues that subsection 161.001(1)(R) should not be

considered as a ground for termination of her parental rights because the Department failed to

request termination on this ground at trial. We disagree. The Department included subsection

161.001(1)(R) as a ground for termination in its petition. And, both the evidence and the argument

presented at trial demonstrated that the Department was seeking termination on this ground. In

fact, in closing argument counsel for the Department stated, “We would request termination of

mom and dad on “D” and “E” and the ground of having a baby born addicted to a controlled

substance.” Bethany also argues that subsection 161.001(1)(R) should not be considered as a

termination ground because it was not included in the trial judge’s notes. Again, we disagree. A

trial judge’s notes are for his or her own convenience and form no part of the record. State v.

Fuller, No. 04-96-00898-CR, 1997 WL 136541, at *1 (Tex. App.—San Antonio, no pet.) (not -7- 04-14-00802-CV

designated for publication); First Nat’l Bank of Giddings, Texas v. Birnbaum, 826 S.W.2d 189,

190 (Tex. App.—Austin 1992, no writ). The termination order controls here and it includes

subsection 161.001(1)(R) as one of the grounds for termination.

The crux of Bethany’s argument is that the evidence was insufficient to prove that Allison

was born addicted to cocaine and that Bethany was the cause of the addiction. Bethany complains

of the Department’s failure to present any expert testimony or documentary evidence showing that

she was the cause of Allison’s positive drug test. According to Bethany, the record is “silent” as

to whether Allison was born addicted to cocaine because there was only “vague testimony” from

the Department caseworker that Allison suffered from symptoms of withdrawal for several

months. Bethany further complains that there was no evidence or expert testimony to show that

the withdrawal symptoms identified by the caseworker—vomiting, jerking movements, and an

inability to sleep—were in fact symptoms of cocaine addiction.

Contrary to Bethany’s arguments, the Department was not required to present expert

testimony that Allison was born addicted to a controlled substance. See In the Interest of D.D.G.,

423 S.W.3d 468, 474 (Tex. App.—Fort Worth 2014, no pet.) (rejecting an argument that expert

testimony was required to establish that a child was born addicted to a controlled substance). And,

Bethany directs us to no authority for her claim that the Department was required to present

documentary evidence to prove that Allison was born addicted to cocaine. In fact, the Texas Family

Code provides that a child is born addicted to a controlled substance if that child is born to a mother

who used a controlled substance during her pregnancy, and after birth, as a result of the mother’s

use of the controlled substance, experiences observable withdrawal from the controlled substance,

or exhibits observable or harmful effects in the child’s physical appearance or functioning. See

TEX. FAM. CODE ANN. § 261.001(8)(A),(B)(i),(ii).

-8- 04-14-00802-CV

In this case, Bethany’s use of cocaine during her pregnancy was undisputed. In her trial

testimony, Bethany admitted that she used cocaine during her pregnancy with Allison. Bethany

also testified that she had given birth to another child who was drug-positive. Finally, Bethany

acknowledged that Allison had suffered because of Bethany’s cocaine use. Furthermore, the

caseworker testified that Allison had exhibited observable symptoms of withdrawal for three to

fourth months after her birth, and that Allison had some motor skill delays and was currently

receiving physical therapy to help her walk. Given this evidence, a reasonable factfinder could

have found that Bethany was the cause of Allison being born addicted to a controlled substance.

Considering the evidence under the applicable standards of review, we conclude that the trial court

could have formed a firm belief or conviction that Bethany violated subsection 161.001(1)(R). See

C.H., 89 S.W.3d at 25. We, therefore, conclude the evidence was legally and factually sufficient

to support the trial court’s finding that Bethany committed one of the statutory grounds for

involuntary termination under section 161.001 of the Texas Family Code. 2

Next, Bethany argues the evidence was insufficient to show that termination was in

Allison’s best interest. According to Bethany, the only evidence presented as to the child’s best

interest was evidence of the Department’s long-term goal of a non-relative adoption. As previously

noted, the Department was not required to present evidence as to each and every Holley factor. See

C.H., 89 S.W.3d at 27. Nevertheless, the evidence in this case addressed multiple Holley factors.

544 S.W.2d at 371-72. First, the evidence showed that Bethany’s cocaine use endangered Allison’s

health and physical well-being. Because of Bethany’s cocaine use, Allison suffered withdrawal

2 Because we have concluded that the evidence was legally and factually sufficient to support termination of Bethany’s parental rights under subsection 161.001(1)(R), we need not address Bethany’s remaining complaints regarding the sufficiency of the evidence under subsections 161.001(1)(D),(E),(N),(O), and (P). See A.V., 113 S.W.3d at 362 (recognizing that a single predicate finding is sufficient to support termination when there is also a finding that termination is in the child’s best interest); TEX. R. APP. P. 47.1 (requiring opinions to address only those issues necessary to final disposition).

-9- 04-14-00802-CV

symptoms for several months and was still suffering from some motor skill delays at the time of

trial. Second, the evidence showed Bethany’s parental abilities were lacking. Allison was

Bethany’s second child born addicted to cocaine. Bethany claimed that the reason she used cocaine

during her pregnancy was because she felt “desperate” and was unable to talk to anyone about her

feelings. Yet, even at trial, Bethany minimized the nature of her problems. The evidence also

showed Bethany’s visits with Allison were stopped because Allison cried uncontrollably during

and after the visits. Third, the evidence showed that although services were made available to help

Bethany with her psychological and drug-related problems and her parenting skills, Bethany failed

to take advantage of these services. In fact, Bethany failed to complete any component of her

service plan. Considering this evidence under the applicable standards of review, we conclude that

the trial court could have formed a firm belief or conviction that the termination of Bethany’s

parental rights was in Allison’s best interest. We, therefore, conclude the evidence was legally and

factually sufficient to support the trial court’s finding that termination of parental rights was in the

child’s best interest.

CONCLUSION

The trial court’s termination order is affirmed.

Karen Angelini, Justice

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