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In re T.R.S.

Court of Appeals of Texas, Ninth District, Beaumont

June 13, 2019

IN THE INTEREST OF T.R.S.

          Submitted on May 6, 2019

          On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. CV1712251

          Before McKeithen, C.J., Horton and Johnson, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON JUSTICE

         In this parental-rights termination case, Father[1] seeks to overturn the final judgment terminating his parental rights to his daughter based on his claim that the evidence does not support the trial court's finding that terminating his relationship with his daughter is in her best interest.[2] For the reasons explained below, we conclude that legally and factually sufficient evidence is in the record to support the trial court's best-interest finding.

         Background

         The record shows the Department of Family and Protective Services sued Father in July 2017 seeking to terminate his parental rights to Tricia based on reports alleging that Father "ha[d] been addicted to drugs for years," had been seen under the influence of drugs while around Tricia, and that Tricia's home was infested with lice and mold. The Department also alleged that Father had not allowed the Department's caseworker to have access to Tricia's home or to interview her.

         The Department tried the case in a bench proceeding in December 2018. The trial lasted two days. Tricia was six years old when the trial occurred. On the first day of the trial, the Department called the Department's caseworker, Tricia's foster mother, and the individual the trial court appointed to serve as Tricia's court-appointed special advocate (CASA). That same day, the court and the attorneys representing the parties interviewed Tricia in the court's chambers. Father also testified on the first day of the trial. On the second day of the trial, Father called a woman, "Mary."[3] Mary testified that she knew Father when he was younger and that she and Father had reconnected just months before the trial.

         Generally, the testimony in the trial shows that before the Department sued, Father had worked as a tattoo artist for over two decades. He was still working in that occupation at the time of the trial. The evidence revealed that Father and Tricia both love each other, and Father stated a desire to raise her. During the testimony, Father claimed that doctors had diagnosed Tricia with autism before he and Tricia moved to Texas. Father also testified that every time he sees Tricia, she asks him "when she's going to get out of" the home where she now lives.

         For the most part, the trial focused on Father's drug use. Father testified that he is not addicted to any drugs, admitted he used a prescription stimulant in the past, and stated he was not currently taking the stimulant but agreed that he still needs it. Father explained that before he and Tricia moved to Texas, he smoked marijuana. He denied using methamphetamines since leaving college "a long time ago." During the trial, Father agreed the drug testing he completed showed he had used marijuana and amphetamines, but he claimed the tests do not show that he was using meth.[4]Still, Father testified that the lab that did his tests should have categorized the results assigned to his tests as false positives and not classified them as positive results. According to Father, his tests results were positive because he had taken a medication to prevent heartburn. Father claimed that any drug tests he missed resulted from missing the telephone calls informing him of the dates the lab scheduled the tests.

         Father addressed questions about his work, job opportunities, the support he provided to Tricia, and where he lived after the Department removed Tricia from his care. Father explained that he lived with his mother for a while, but she kicked him out, which left him no place to live. Father stated that he currently lives with the owner and owner's family of the tattoo shop where he works. He explained that he often stays in the shop all night depending on his schedule. While Father denied his current roommate has a criminal history or history with the Department, he stated that he never asked his roommate to speak with the Department's investigator because he never intended to have Tricia live where he currently resides.

         Father addressed his future plans for Tricia when he testified. According to Father, he has a better job opportunity to work and earn more as the manager of a tattoo parlor in Florida. Father explained that if the court allowed him to maintain his possessory rights, he would stay in Texas but that his ultimate goal is to move to Florida and manage a tattoo parlor there. Father agreed that if the court placed Tricia with Mary, he could not help support Tricia because he has "no support here." Father reiterated: "My plan was not to be here, my plan was to be in Florida and I had it all set up." Father's testimony allowed the trial court to conclude he has provided little support to Tricia. He has supplied her with some things when she asks, like clothes and toys.

         The testimony of the Department's caseworker shows that Father violated the Department's service plan and failed to complete several substance abuse programs. The caseworker stated that Tricia came into the Department's care in July 2017, after the Department received a report that Father was seen under the influence of drugs while Tricia was present. According to the caseworker, Father took drug tests in July 2017 and July 2018. The caseworker stated the tests were positive for methamphetamine. The caseworker explained that while handling the case, she learned that another child protective agency in another state had investigated Father based on his reported use of drugs. The caseworker testified that after the Department sued, Father missed over twenty of the tests he was supposed to take to determine whether he was taking drugs. According to the caseworker, Father told her he missed the tests because he did not want "to do drug tests for [the Department] anymore." She also stated she believes Father still uses illegal drugs.

         The testimony in the trial addressed Father's employment and living arrangements. The caseworker testified that Father told the Department that he worked at a tattoo parlor, but he had no paperwork to document what he made there. During the trial, the caseworker expressed her concerns about Father's living arrangements. She stated that if the trial court required the Department to return Tricia to Father, "[she] wouldn't know where [Tricia] would be living." The caseworker acknowledged that Father never missed any visits with Tricia while Tricia was in the Department's care. The caseworker stated that she thought Father's parental rights should be terminated due to his failure to complete a drug rehabilitation program required by his family service plan. She also explained that, in her opinion, Father knowingly placed or allowed Tricia to remain in conditions or surroundings that endangered Tricia's physical or emotional well-being. According to the caseworker, Tricia's best interest would be served by terminating Father's rights because he could not provide Tricia a safe and stable home.

         Tricia's CASA testified that currently, Tricia is living in a home where she is happy, playful, and active in Girl Scouts. She explained that Tricia has excellent grades in school. According to the CASA, Tricia expressed a desire to be with Father and to remain in the school where she has many friends. The CASA stated that Tricia recently said "she has wished to move to Florida and go to Disney World and go to the beach like her dad promised her." The CASA agreed that since the Department removed Tricia, Father had seen Tricia regularly, Tricia desired to see him, and he had given Tricia toys and clothes.

         That said, the CASA expressed concern about whether Father had the skills needed to care for Tricia. According to the CASA, Father tested positive on the drug tests that he took in the summer of 2018. She stated that Father's current roommate refused to cooperate with the Department's efforts to check his background to allow the Department to evaluate whether "it would be possible for reunification there." The CASA explained she had not been able to determine whether Father's current living arrangement offers Tricia a stable and drug-free environment. The CASA stated she understood that Tricia's foster mother wants to adopt Tricia, and that the foster mother is agreeable to allowing Tricia to communicate with her Father. According to the CASA, it would not be in Tricia's best interest for the court to place Tricia in Mary's home. Finally, the CASA testified that, in her opinion, it was in Tricia's best interest for her Father's rights to be terminated.

         Tricia's foster mother, "Terry," testified in the trial about Tricia's current placement. According to Terry, Tricia has lived with her for almost sixteen months. Terry stated that Tricia calls her mom, and she described Tricia as a normal six-year-old child. Terry explained that she wants to adopt Tricia, that Tricia does well in school, that Tricia likes to model, and that Tricia attends church and goes to movies. According to Terry, Father has her phone number, but he has not contacted her often asking to speak to Tricia even on holidays or on Tricia's birthday. Terry explained that Tricia attends play therapy sessions one day a week. Terry acknowledged that if she adopted Tricia, the law would not require her to allow Father to contact Tricia. Even so, Terry testified that she believes Father and Tricia should have an ongoing relationship with each other. Terry explained she would leave that option open if Father would agree to contact Tricia consistently and agree to have his visits supervised by the Department.

         The trial court interviewed Tricia in chambers during the trial.[5] In the interview, Tricia stated she wanted to continue to live in her current placement if Father could not live with her. She explained that she wants to continue to have a relationship with her father, that she is happy in her current placement, and that she would like to stay in school where she has "lots of friends." Yet Tricia stated that, if given a choice, she would like to accompany her Father and move to Florida.

         During her testimony, Mary offered to serve as Tricia's foster mother so Father could maintain possessory rights to Tricia. Mary explained that based on Father's proposed plan, the court could avoid terminating Father's rights and preserve his right to one day have his rights restored as Tricia's managing conservator.[6]

         In final argument, the Department acknowledged that Tricia desires to live with Father. It argued, however, that living with Father is not in Tricia's best interest because he uses illegal drugs and failed to complete a drug rehabilitation program. The Department also argued Father violated his family service plan and had not shown the ability to provide Tricia with a safe place to live. The attorney ad litem who the trial court appointed to represent Tricia in the case argued that denying the Department's request to terminate Father's rights while allowing Father to continue to work on his parenting skills is the plan she thought would best serve Tricia's interests. Father's attorney argued that Father is in transition, has no resources to care for Tricia, no plans to provide Tricia significant support required to live in Texas, and no plan to house Tricia since Texas is not the state he was planning to make his permanent home. Father's attorney also argued the evidence showed that Father loved Tricia, that Father was willing to care for her based on his decision to remain in Texas, and that Father was exercising his rights to see her.

         When the trial ended, the trial court announced its decision to find by clear and convincing evidence that the Department established Father's rights should be terminated under subsections D, E, and O.[7] The trial court then advised the parties that the court was also ruling that terminating Father's parental rights would be in Tricia's best interest.[8] The day the trial court announced its ruling, it signed a judgment terminating Father's rights.[9] The judgment is consistent with the findings the trial court announced at the conclusion of the trial.

         Standard of Review

         The standards that apply to the arguments Father raises in his brief require this Court to review the trial court's findings "'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.'"[10] To uphold a verdict terminating a father's right to parent a child, the record must establish, by clear and convincing evidence, (1) the parent committed one or more of the prohibited acts or omissions listed in section 161.001(b)(1) of the Texas Family Code, and (2) that terminating the parent's rights is in the child's best interest.[11] Currently, the statute authorizing a parent-child relationship to be terminated includes twenty-one grounds for termination, any of which can authorize a factfinder to terminate a parent's relationship with the child.[12]

         Here, the trial court's findings are based, in part, on three subsections of the Family Code: subsection D, based on the trial court's finding that Father knowingly allowed Tricia to remain in conditions or surroundings that endangered her physical or emotional well-being; subsection E, based on the trial court's finding that Father engaged in conduct or placed Tricia with persons who engaged in conduct that endangered her physical or emotion well-being; and subsection O, based on the trial court's finding that Father violated the provisions of his court-ordered, family service plan.[13] A positive finding relying on any one of these grounds, when coupled with a second and required finding that terminating the relationship is in the child's best interest, allows a trial court to render a judgment terminating the parent's relationship with his or her child.[14]

         When reviewing a trial court's findings, we must assume the trial court resolved all facts in a way that favors the finding the appellant has challenged if the evidence allowed the court to reasonably make the finding that is being challenged.[15]When reviewing the evidence, we disregard all evidence that the trial court could have disbelieved or found incredible.[16] We must overrule a legal sufficiency challenge if the evidence in the record allowed the trial court to form a firm belief or conviction that the matter the Department had to prove was true.[17]

         In a factual sufficiency review, we consider and weigh all the evidence in the record after giving deference to the trial court's findings to avoid supplanting the trial court's verdict with our own.[18] If, given the entire record, the disputed evidence the trial court could not have credited in favor of its finding is so significant that the trial court could not have reasonably formed a firm belief or conviction that the finding that has been challenged could have been found to be true, the appellate court will find the evidence is factually insufficient to support the challenged finding.[19]Stated another way, we give the trial court's findings due deference to avoid substituting our judgment for the one the trial court made based on the evidence admitted in the trial.[20]

         Best Interest of the Child

         On appeal, Father does not argue there was not enough evidence before the trial court to support the trial court's findings that Father violated subsections D, E, and O of the Family Code.[21] Instead, Father challenges the legal and factual sufficiency of the trial court's best-interest finding.

         "In determining whether the evidence is legally sufficient to support a best-interest finding, we 'consider the evidence that supports a deemed finding regarding best interest and the undisputed evidence,' and ignore evidence a fact-finder could reasonably disbelieve."[22] Under the Family Code, a "rebuttable presumption [exists] that the appointment of the parents of a child as joint managing conservators" will serve the child's best interest.[23] Yet, this is a rebuttable presumption, and courts must also ...


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