in the Interest of S v. and D v. Minor Children
Date Filed2016-12-30
Docket07-16-00279-CV
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00279-CV
IN THE INTEREST OF S.V. AND D.V., MINOR CHILDREN
On Appeal from the 287th District Court
Bailey County, Texas
Trial Court No. 9361, Honorable Edward Lee Self, Presiding
December 30, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
J.H., appellant and mother of S.V. and D.V., appeals from an order terminating
her parental rights to those children. The two children were born in August 2012 and
March 2014, respectively.1 Through a single issue, she contends that the evidence was
legally and factually insufficient to support the finding that termination was in the best
interest of the children. We affirm.
The pertinent standards of review are described in In re K.M.L., 443 S.W.3d 101(Tex. 2014) and In re K.V., No. 07-16-00188-CV,2016 Tex. App. LEXIS 11091
(Tex.
AppâAmarillo October 11, 2016, no pet.) (mem. op.). In applying it, we also compare
1
The childrenâs father voluntarily relinquished his rights and did not appeal.
the evidentiary record to the factors itemized in Holley v. Adams, 544 S.W.2d 367 (Tex.
1976).2
Next, appellant did not question the sufficiency of the evidence to support
termination on the statutory grounds found to exist by the jury. Those grounds were
that J.H. 1) knowingly placed or allowed the children to remain in conditions or
surroundings which endangered the physical or emotional well-being of the children,
TEX. FAM. CODE ANN. § 161.001(b)(1)(D) (West Supp. 2016), 2) engaged in conduct or
knowingly placed the children with persons who engaged in conduct which endangered
the physical or emotional well-being of the children, id. § 161.001(b)(1)(E), and 3) failed
to comply with the provisions of a court order that specifically established the steps
necessary to obtain the return of the children. Id. § 161.001(b)(1)(O). The evidence
relating to the existence of those grounds may be considered in assessing the best
interests of the children. In re C.H., 89 S.W.2d 17, 28 (Tex. 2002).
The record before us held the following evidence.
J.H. was twenty-three years old at the time of trial. She had three children, but
only S.V. and D.V. were part of this termination suit. The youngest, C.G., was also
removed from her, though.3 J.H. began her drug use with marijuana at age fifteen and
2
Appellant argued that the factors guiding our decision are those found in § 263.307 of the Texas
Family Code. The factors listed in the statute appear under a section labelled "Factors in Determining
Best Interest of Child" and are to be considered "by the court and the department in determining whether
the child's parents are willing and able to provide the child with a safe environment." TEX. FAM. CODE
ANN. § 263.307(b) (West Supp. 2016). The factors itemized in Holley v. Adams have never been deemed
exclusive when assessing whether the best interests of the child warrant termination of the parent child
relationship. Furthermore, various of the factors mentioned in Holley fall outside the scope of those
expressed in § 263.307(b). Yet, assuming arguendo that § 263.307(b) applies to a termination
proceeding, they too will be considered here if developed by the evidence. See In re A.C.Y., No. 04-16-
00445-CV, 2016 Tex. App. LEXIS 11543, at *39-40 (Tex. App.âSan Antonio October 26, 2016, no pet.)
(mem. op.) (considering the factors in § 263.307(b) when weighing the best interests of the child).
3
C.G. is a half-sister to S.V. and D.V. J.H. apparently lived with C.G.'s father, G.G., at the time of
trial. However, J.H. denied knowing G.G. when asked about him by a representative of the Texas
2
proceeded to take cocaine by age eighteen. Though she would endeavor to quit, her
efforts would inevitably fail. More importantly, the children were affected by it.
C.G. tested positive for drugs immediately before she was removed. J.H. blamed
this on her sister, A., who allegedly exposed the child when ingesting
methamphetamine. By that time, though, J.H.âs own drug habit had resulted in harm to
D.V. Using them during her pregnancy caused her son to be born from twelve to
sixteen weeks prematurely. According to an attending physician, J.H. appeared to be
under the influence of intoxicants at the time. When born, the child suffered from
underdeveloped lungs and other medical and developmental issues, which necessitated
critical attention. Though the medical conditions ameliorated themselves somewhat, the
two year old still suffered from respiratory problems and asthma at time of trial.
Other instances of J.H endangering D.V. included foregoing prenatal care. So
too did she expose the asthmatic child to cigarette smoke during visits, an act that at
least one physician had warned her against. According to the evidence, D.V. would
return from his visits with J.H. smelling of smoke, wheezing, and extremely tired.4
Added to the foregoing are instances of J.H.'s instability. Comprising them were
a lack of consistent employment and housing. So too did she engage in criminal
activity. According to the record, J.H. had been prosecuted and placed on probation for
assault (which was committed in S.V.âs presence), forging a prescription for
hydrocodone pills, and burglary. That parents who commit criminal acts endangered
their children was a matter conceded by J.H. Furthermore, J.H.âs relationships with
Department of Family and Protective Services. Understandably, this was of concern to the
representative. Furthermore, the representative discovered that the local police had appeared at the
home periodically in response to domestic disturbance calls.
4
In one instance, the boy returned from visiting J.H. with a burn on the bottom of his foot.
3
others were intermixed with volatility, as well. Apparently, police had often been called
to investigate complaints regarding J.H.âs involvement in fights.
The record further depicted that S.V. suffered from ânight terrorsâ and
âstruggle[ed] with being able to sleep through the nightâ before being removed from J.H.
Though the events grew less frequent after her removal and placement with foster
parents, the child still experiences them. As for her environment, S.V. was said to need
stability, consistency, and reduced stress. She gained those through living with her
current foster parents, whom she had bonded with and came to call mother and father.
She called her biological mother by her first name, though. S.V.'s foster parents also
had long range plans for the child and the financial ability to effectuate them. S.V. also
was described as happy at the time of trial, though she still cared for J.H.
D.V. also lived with foster parents who understood his medical needs, had the
capability of addressing them, and expressed an interest in maintaining a long-term
relationship with the child. They and the child had bonded. His foster parents not only
allowed D.V.âs youngest sibling to live with them but also arranged with S.V.'s foster
parents to allow the children continued access to each other.
Other evidence indicated that J.H. interacted well with the children during
supervised visits. So too had she completed various programs to gain the return of her
offspring. Yet, one witness opined that though J.H. completed the courses, she had not
implemented lessons learned from them. And, at one point it was thought that her
progress was sufficient to warrant the return of her children. But, her continued drug
use again resulted in their removal; that is, she tested positive for using both
4
methamphetamine and cocaine.5 When the children were taken at that time in
December of 2015, they were found outside insufficiently dressed for the climate. D.V.
wore clothes too small for him and appeared dirty. Other evidence indicated that during
the period in which she possessed her children, J.H. exhibited delay in securing
services for D.V., who had a continuing need for physical and speech therapy. D.V.'s
foster parents had the financial means to assure that he received the needed
therapeutic help.
A child's exposure to a parent's drug use is evidence that can support a finding
that termination is in the best interest of the child. See In re A.C.Y., No. 04-16-00445-
CV, 2016 Tex. App. LEXIS 11543, at *38-40 (Tex. App.âSan Antonio October 26, 2016, no pet.) (mem. op.); In re. J.J., No. 07-13-00117-CV,2013 Tex. App. LEXIS 11194
, at *20-27 (Tex. App.âAmarillo August 29, 2013, no pet.) (mem. op.). The same is true of familial dysfunction and instability. See In re A.C.Y.,2016 Tex. App. LEXIS 11543
, at 36-40. We have that here, and more. Considering the evidence and
comparing it to the standards of review and relevant legal factors considered in cases
such as this, the jury could have reasonably formed a firm belief or conviction that
termination of J.H.âs rights was in the best interests of S.V. and D.V. Accordingly, we
affirm the trial courtâs judgment.
Per Curiam
5
J.H.'s penchant for resuming her drug abuse was a major concern of the Department and
influenced its decision that termination was in the best interests of the children.
5