In re N.L.S.

1

IN THE INTEREST OF N.L.S., E.D.S., A.C.S., and I.S., Children

No. 04-23-00251-CV

Court of Appeals of Texas, Fourth District, San Antonio

July 5, 2023

From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2022PA00687 Honorable Raul Perales, Judge Presiding

Sitting: Beth Watkins, Justice Lori I. Valenzuela, Justice Sandee Bryan Marion, Chief Justice (Ret.) ^[1]

MEMORANDUM OPINION

Lori I. Valenzuela, Justice

Four children were the subject of the underlying termination proceeding: N.L.S., E.D.S, A.C.S., and I.S.^[2] The Department of Family and Protective Services (the "Department") filed its original petition on April 28, 2022, and on March 20, 2023, the trial court held a bench trial at which several witnesses testified. Afterward, the trial court signed an Order of Termination terminating all parental rights to the children and appointing the Department as permanent managing conservator of the children. L.I.H., the appellant-mother appeals the trial court's order terminating her parental rights to all four children. D.S.S the appellant-father, appeals the termination of his parental rights only as to A.C.S. We affirm.

STANDARD OF REVIEW

To terminate parental rights pursuant to Family Code section 161.001, the Department has the burden to prove by clear and convincing evidence: (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 §§ 161.001(b), 161.206(a). "'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." Id. § 101.007; In re R.S.-T., 522 S.W.3d 92, 97 (Tex. App.-San Antonio 2017, no pet.).

In this case, the trial court found evidence of one predicate ground to terminate L.I.H.'s parental rights, specifically subsection (O) of section 161.001(b)(1). The trial court also found termination of her parental rights was in the children's best interest. Regarding D.S.S.'s parental rights to A.C.S., the trial court found evidence of one predicate ground to terminate his parental rights, specifically section 161.002(b)(1). The trial court also found termination of his parental rights was in A.C.S.'s best interest. On appeal, both parents challenge the legal and factual sufficiency of the evidence.

When reviewing the sufficiency of the evidence, we apply the well-established standards of review. See Tex. Fam. Code §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (factual sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (legal sufficiency). The trier of fact is the sole judge of the credibility of witnesses and the weight to be given their testimony. See J.P.B., 180 S.W.3d at 573. In a bench trial, such as here, "the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the 'forces, powers, and influences' that may not be apparent from merely reading the record on appeal." In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (citation omitted). We therefore defer to the trial court's judgment regarding credibility determinations and will not substitute our judgment for the trial court's. In re Z.R.M., No. 04-22-00787-CV, 2023 WL 2506430, at *4 (Tex. App.-San Antonio Mar. 15, 2023, pet. denied). While we must detail the evidence relevant to the issue of parental termination when reversing a finding based upon insufficient evidence, we need not do so when affirming a verdict of termination. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).

When considering the best interest of the child, we recognize the existence of a strong presumption that the child's best interest is served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). "[T]he best interest standard does not permit termination [of parental rights] merely because a child might be better off living elsewhere." In re A.H., 414 S.W.3d 802, 807 (Tex. App.-San Antonio 2013, no pet.) (citation omitted). However, we also presume that prompt and permanent placement of the child in a safe environment is in the child's best interest. Tex. Fam. Code § 263.307(a). The Department has the burden to rebut these presumptions by clear and convincing evidence. See, e.g., R.S.-T., 522 S.W.3d at 97. To determine whether the Department satisfies its burden, the Texas Legislature has provided several statutory factors^[3] for courts to consider regarding a parent's willingness and ability to provide a child with a safe environment, and the Texas Supreme Court has provided a similar list of factors^[4] to determine a child's best interest. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

BACKGROUND

Michelle Castillo^[5] testified the case was referred to the Department because I.S. was born drug positive. Castillo said L.I.H. also tested drug positive, but she did not state when the drug test was taken. Castillo admitted L.I.H. did not drug test with the Department; instead, she tested with Elite Counseling. Castillo stated D.S.S. was the presumed father of all the children except A.C.S. According to Castillo, D.S.S did nothing to legitimize his parentage of A.C.S. and he did not do a DNA test.

Castillo testified service plans were prepared for both parents. Castillo stated L.I.H. was required to complete a parenting class, a psychological evaluation, a psychiatric evaluation, and counseling. L.I.H. completed her psychiatric evaluation on August 31st and her psychological evaluation on September 26th, but L.I.H. did not follow the recommendations.^[6] L.I.H. visited with the children throughout the case, the latest visit being the Friday before the trial; all the visits were appropriate; L.I.H. and the children appeared bonded; and L.I.H. provided clothes or snacks during the visits. Castillo said, "the most important service asked [of L.I.H.] was drug treatment and an OSAR assessment."^[7] Elite Counseling recommended L.I.H. submit to inpatient counseling with Alpha Home. However, L.I.H. never started, much less completed, any inpatient treatment. When asked how she helped L.I.H. engage in her services, Castillo replied she would remind L.I.H. about who to call for her services and remind her to obtain her medication from the Center for Healthcare Services. Castillo testified, "[i]t was a lot of, you know, reminding her to do things, you know, to get ahold of this person. It was just a lot - I would text her throughout to see if she was going to start." Castillo explained L.I.H.'s reason for not entering the inpatient drug treatment program as follows:

For the entering [sic] drug inpatient, I believe she needed to provide her own detox. And she did mention a few times that just different excuses on why she wasn't being [sic] able to get that medication to detox.

. . .

Before entering Alpha Home she would have to detox, like she would have to get medication; but she just never did. I'm not sure why.

Castillo was further asked about L.I.H. obtaining the medication before entering Alpha Home:

Q. . . . Was that provided by the Department, she just had to pick it up?

A. No. She had to get it on her own. That's what Alpha Home required before entering inpatient treatment.

Q. Okay. And where was she supposed to get that medication?

A. Before entering. In January, that's when they had a bed available. She was supposed to get that taken care of before she entered and just never followed through, never did.

Q. Right. But my question was where was she supposed to get it? Was she supposed to get it from her doctor or -

A. Yes, or Center for Healthcare Services could have provided that for her -

Q. Okay.

A. - since she didn't have any insurance.

Castillo could not verify whether L.I.H. still used drugs because she never tested for the Department. Castillo was aware of L.I.H.'s mental health diagnosis, which she did not explain, and that L.I.H. needed medication for that diagnosis. When asked if L.I.H. needed additional time to engage in her services because of that diagnosis, Castillo replied, "No. She's had plenty of time."

As for D.S.S., he was required to complete an OSAR assessment, drug assessment, parenting class, and a psychological evaluation, none of which he completed. Castillo said she "made contact" with D.S.S. early in the case, but she never met with him. His first visit with the children was the Friday before the trial. He did not provide any support for the children. She said D.S.S. had different telephone numbers and sometimes they were nonworking numbers. She attempted to meet him or find him at his mother's house, but she was not successful in finding him because he was "transient."

Castillo said that until recently the children were staying with their maternal grandmother, but were removed two or three weeks before the trial when E.D.S. was found by a neighbor in the street by himself. Apparently, unbeknownst to the Department, the maternal grandmother was allowing L.I.H. to stay at the house.

Castillo stated the Department's plan for the children is relative adoption and they were still seeking family members. The maternal grandmother provided a list of family members and D.S.S. provided the names of two relatives. The Department has not done a home study on any family member and is still "just gathering information." The eldest child nine-year-old N.L.S., knows and understands, with the help of counseling, what is happening in the case and has been told the Department is looking for a family with whom she can stay. Castillo admitted she never asked N.L.S. whether she wanted to be adopted. Two of the...