Date: 10-02-2022

Case Style:

In the Interest of A.H., a Child

Case Number: 04-21-00367-CV

Judge: Patricia O. Alvarez

Court:

Fourth Court of Appeals San Antonio, Texas

On appeal from the 131st Judicial District Court of Bexar County

Plaintiff's Attorney: Joe D. Gonzales Raul Perales Scott Roberts

Defendant's Attorney:

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Description:

San Antonio, Texas – Family Law lawyer represented Appellant with a parental rights termination case.

A.H. was about one year old when CPS started a case for her and petitioned the trial court for her removal from Mom’s home due to domestic violence and parenting concerns. A.H. was the eighth child to be removed from Mom’s home by CPS. The CPS caseworker created service plans for Mom and Dad, which included domestic violence classes and drug testing that neither parent completed. The caseworker testified that Mom completed one of eleven drug tests. This test was positive for methamphetamine. Mom testified that she tested negative for drugs twice during her case, but the caseworker did not corroborate this testimony. Dad reportedly completed two of thirteen drug tests. The caseworker observed that, over the course of the case, Mom and Dad did everything together. Mom testified that she was no longer in a relationship with Dad because she realized that it was toxic. But the caseworker noted that Dad still visited Mom’s home frequently. The caseworker testified that domestic violence between Mom and Dad was an ongoing pattern, though Mom denied any violence between them. After a one-day trial on the merits, the trial court found by clear and convincing evidence that Mom’s and Dad’s courses of conduct met the grounds in Family Code section 161.001(b)(1)’s subsections (N), (O), and (P), and that terminating Mom’s and Dad’s parental rights was in A.H.’s best interest. The trial court terminated Mom’s and Dad’s parental rights to A.H. and appointed the Department of Family and Protective Services as A.H.’s managing conservator pending placement or adoption. Mom requested a trial de novo, which the trial court granted. In the de novo proceeding, Mom drew the trial court’s attention to the Indian Child Welfare Act (ICWA), arguing that the state’s trial court did not actually have jurisdiction to decide any custody issue for A.H. But the trial court found that A.H. did not fit the definition of an Indian child under the Act. 04-21-00367-CV - 3 - The Department presented evidence of continued domestic violence between Mom and Dad since the original termination. The trial court terminated Mom’s parental rights to A.H. under Family Code section 161.001(b)(1)’s subsections (N), (O), (P), and (M). The trial court terminated Dad’s parental rights to A.H. under subsections (N), (O), and (M). It found that terminating Mom’s and Dad’s parental rights was in A.H.’s best interest and appointed the Department as A.H.’s sole managing conservator. On appeal, Mom and Dad each challenge the legal and factual sufficiency of the evidence for the trial court’s findings on the best interest of the child, and Mom challenges the statutory grounds findings. Mom also raises a jurisdictional challenge under the Indian Child Welfare Act. MOM’S ICWA CLAIM As the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901–63 (2012), issue is potentially jurisdictional, we address it first. A. Grounds for Mom’s ICWA Claim At Mom’s de novo proceeding, she testified that a DNA test with Ancestry.com showed that she had Native American heritage. As a result, she testified that she applied for tribal membership with The Coahuila Missions. When asked if she applied with a federally recognized tribe, she responded that she applied with the Cherokee Nation. At the time of trial, Mom stated she was not an enrolled member of any tribe. Nevertheless, Mom argues that, according to ICWA, the trial court erred by terminating the rights of A.H.’s parents. B. Standard of Review “The trial court’s application of the ICWA is reviewed de novo.” In re T.R., 491 S.W.3d 847, 850 (Tex. App.—San Antonio 2016, no pet.) (citing In re W.D.H., 43 S.W.3d 30, 33 (Tex. App.–Houston [14th Dist.] 2001, pet. denied)). 04-21-00367-CV - 4 - C. Duties Under ICWA “ICWA’s goal is to provide procedural and substantive standards for child custody proceeding[s], including termination of parental rights. In re T.R., 491 S.W.3d at 850 (citing 25 U.S.C. § 1903(1)(ii); Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36–37 (1989)). “The Act articulates a federal policy that, where possible, an Indian child should remain in the Indian community.” Id. (citing Miss. Band of Choctaw Indians, 490 U.S. at 36). It imposes a duty on parties seeking foster placement or parental rights termination to notify the relevant tribeiii when the trial court knows or has a reason to know that the child is an Indian childiv. See In re T.R., 491 S.W.3d at 850 (citing 25 U.S.C. § 1912(a)); accord 25 C.F.R. § 23.11; In re R.R., Jr., 294 S.W.3d 213, 220 (Tex. App.—Fort Worth 2009, no pet.); but see In re R.M.W., 188 S.W.3d 831, 832 (Tex. App.—Texarkana 2006, no pet.) (declining to apply ICWA where no evidence in the record suggested that children met the Act’s definition of Indian children). “Circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian include [when] ... (i) Any party to the case ... informs the court that the child is an Indian child .... (ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child.” In re R.R., Jr., 294 S.W.3d at 219 (citing BIA Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. at 67,586). To discover which children might be protected by ICWA, the trial court “must ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that iii An Indian tribe under ICWA includes “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of Title 43.” In re T.R., 491 S.W.3d 847, 852 (Tex. App.—San Antonio 2016, no pet.) (citing 25 U.S.C. § 1903(8)). iv An Indian child is defined as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” In re T.R., 491 S.W.3d at 852 (citing 25 U.S.C. § 1903(4)). 04-21-00367-CV - 5 - the child is an Indian child.” 25 C.F.R. § 23.107; accord Brackeen v. Haaland, 994 F.3d 249, 288 (5th Cir. 2021) (emphasis added). “The inquiry is made at the commencement of the proceeding and all responses should be on the record.” 25 C.F.R. § 23.107. In cases where this step is not taken, the proceeding may be subject to future invalidation. See In re J.J.C., 302 S.W.3d 896, 902 (Tex. App.—Waco 2009, no pet.); In re R.R., Jr., 294 S.W.3d at 225. D. Analysis 1. Documentation prior to August 17, 2021 The trial court’s documentation from the adversary hearing following removal indicates that the trial court “inquired whether the child’s family has Native American heritage and identified any Native American Tribe with which the child may be associated.”v However, the form is general in most sections and contains no specific confirmation as to whether the question was specifically asked at the proceeding. Another section of the same form indicates that the child’s status was unknown and unasked: “An inquiry regarding the child or family’s possible Indian ancestry is not complete due to ex parte proceedings or similar circumstances.” The same form also orders each respondent, inter alia, to provide the Department and the trial court any “records of Indian Ancestry or Tribal Membership” and any information related to the child’s Native American heritage. 2. De Novo Trial Proceedings: August 17, 2021 The first reference in the reporter’s record to the court’s knowledge of the child’s possible status under the statute is contained in the transcript of the trial de novo, for which the presiding judge was newly assigned. The CPS caseworker testified that she could not recall whether the v This inquiry is required by state law at an adversary hearing following removal. See TEX. FAM. CODE ANN. § 262.201(f) (“The court shall ask all parties present at the full adversary hearing whether the child or the child’s family has a Native American heritage and identify any Native American tribe with which the child may be associated.”) 04-21-00367-CV - 6 - judge previously assigned to the case had inquired into the child’s status. She testified that Mom did not assert Native American heritage in a questionnaire attached to her service plan, which led the caseworker to believe that Mom did not have Native American heritage. The caseworker stated that she did not learn until after the original termination that Mom claimed to have Native American heritage. Mom testified that she had not previously been asked about Native American heritage. She stated that four months before the first trial on the merits, she took a DNA test through Ancestry.com. The results indicated that she had Native American ancestry. Mom testified that she worked on researching her ancestry before apprising her caseworker of her discovery. By the time Mom notified the caseworker of her DNA result, the original trial on the merits had already occurred, and Mom’s parental rights had been terminated. At the time of the de novo trial, Mom testified that she submitted a membership application to The Coahuila Missions, a state-recognized tribe, and planned to apply to the Cherokee Nation. She testified that she was not enrolled as a member of any tribe and that A.H. was also not enrolled in any tribe. 3. Conclusion Based on the Record Based on this record, it is not clear whether the original trial court asked each participant about A.H.’s Native American ancestry. However, assuming without deciding that the original trial court failed to make this required inquiry, the record before us reflects that Mom was given an opportunity to provide evidence at the de novo trial and testified that she only recently became aware of the possibility that she could apply for membership to a tribe, that she had not yet applied for membership in a federally recognized tribe, and that neither she nor A.H. was enrolled in a tribe. Based on these facts, the trial court had no reason to believe that A.H. was an Indian child as defined by ICWA. See 25 U.S.C.A. §§ 1903, 1911; In re R.M.W., 188 S.W.3d at 835. Therefore, we conclude the trial court properly determined that there was insufficient evidence that A.H. was 04-21-00367-CV - 7 - an Indian child, as defined by ICWA. See id. Accordingly, the notice requirement under ICWA was not triggered. See In re T.R., 491 S.W.3d at 852 (citing 25 C.F.R. § 23.11(a)). We overrule Mom’s ICWA complaint. EVIDENCE REQUIRED, STANDARDS OF REVIEW The evidentiary standard1 the Department must meet and the statutory grounds2 the trial court must find to terminate a parent’s rights to a child are well known, as are the legal and factual3 sufficiency standards of review. We apply them here. STATUTORY GROUNDS FOR TERMINATING MOM’S PARENTAL RIGHTS A. Statutory Grounds Findings A single statutory ground finding, when accompanied by a best interest of the child finding, is sufficient to support a parental rights termination order. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re R.S.-T., 522 S.W.3d 92, 111 (Tex. App.—San Antonio 2017, no pet.). Mom argues the evidence was legally and factually insufficient to support the trial court’s finding on each ground, i.e., (N), (O), (P), and (M). We begin with ground (O), failure to comply with a court-ordered service plan. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O). B. Section 161.001(b)(1)(O) 1. Failure to Comply with Court-Ordered Service Plan Mom summarizes and highlights the steps she took to participate in the Department’s family service plan, but she does not ultimately argue that she complied with the service plan, nor does the record reflect that she complied with the service plan. The record establishes that the Department prepared a family service plan for Mom, and Mom understood she was required to comply with it. Further, the “trial court [could] take judicial notice of its previous orders . . . from the same case . . . [and] it [did] not have to state on the record that it took judicial notice of its previous findings in order to rely on them in its later judgment.” 04-21-00367-CV - 8 - In re A.O., No. 04-12-00390-CV, 2012 WL 5507107, at *3 (Tex. App.—San Antonio Nov. 14, 2012, no pet.) (mem. op.) (citations omitted). Mom was required to submit to a drug assessment and treatment, which she admitted she did not do in this case. Mom’s caseworker testified that Mom was referred for eleven drug tests but only submitted to one, which showed a positive result for methamphetamine. Mom testified that she submitted to three drug tests and that two showed negative results. Mom also testified that she completed her parenting class but not her counseling. In addition, Mom’s caseworker testified that Mom did not complete her required domestic violence classes. Considering all the evidence in the light most favorable to the trial court’s findings, we conclude the trial court could have formed a firm belief or conviction that Mom failed to comply with her court-ordered service plan. See TEX. FAM. CODE ANN. § 161.001(1)(O); In re S.M.R., 434 S.W.3d 576, 582 (Tex. 2014). Because only a single statutory ground finding is needed to support an order terminating a parent’s rights to a child, In re A.V., 113 S.W.3d at 362, we need not address the other statutory grounds, see In re R.S.-T., 522 S.W.3d at 111. We overrule Mom’s statutory grounds complaint. BEST INTEREST OF THE CHILD (MOM) Mom argues the evidence was legally and factually insufficient to support the trial court’s finding that terminating her parental rights was in A.H.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2). The Family Code statutory factors4 and the Holley factors5 for best interest of the child are well known. Applying the applicable standards of review and statutory and common law best interest factors, we examine the evidence pertaining to Mom and the best interest of the child. The same evidence we considered in the statutory grounds review may also be probative in the best 04-21-00367-CV - 9 - interest of the child review. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); In re R.S.-T., 522 S.W.3d at 97. A. Mom’s Course of Conduct Mom had a documented history of domestic violence that she refused to admit. Although Mom acknowledged domestic violence involving her brother, she continued to deny any history of domestic violence involving Dad. At the trial de novo, the Department called a police officer witness who testified about responding to a domestic violence incident between Mom and Dad. He stated that Mom called law enforcement on June 25, 2021, because she had been assaulted by Dad. He testified that Dad reportedly kicked Mom and pulled her hair. He stated Mom had visible injuries. He testified that Mom reported being assaulted by Dad in the past and that she reported having an open court case against Dad for domestic violence. The officer stated he witnessed Dad running from the scene when he responded. He and a detective issued a warrant for Dad based on continuous family violence. See TEX. FAM. CODE ANN. § 263.307(b)(7), (10), (11), (12); Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (factors (B), (C), (D), (H); see also In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (trial court may consider domestic violence as evidence of endangering child in parental rights termination). Mom also acknowledged a history of methamphetamine use, failing to submit to numerous drug tests, failing to submit to a drug assessment and failing to participate in either inpatient or outpatient drug treatment.vivii In the de novo proceeding, the trial court found that “continued custody of a child by the parents in this case is likely to result in serious emotional or physical vi “Failure to submit to random drug tests when requested by the Department are considered positive results.” In re L.J.C., No. 04-21-00334-CV, 2022 WL 299896, at *3 (Tex. App.—San Antonio Feb. 2, 2022, no pet. h.) (citing In re C.J.Y., No. 04-20-00009-CV, 2020 WL 3441248, at *5 (Tex. App.—San Antonio June 24, 2020, pet. denied) (mem. op.)); accord In re E.R.W., 528 S.W.3d 251, 265 (Tex. App.—Houston [14th Dist.] 2017, no pet.). vii See In re S.R., 452 S.W.3d 351, 361‒62 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (continued drug use after child’s removal may be considered as establishing endangering course of conduct). 04-21-00367-CV - 10 - damage to the said child.” See TEX. FAM. CODE ANN. § 263.307(b)(1), (7), (8), (10), (11), (12); Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) (factors (B), (C), (D), (H)). Further, Mom failed to learn about A.H.’s actual dietary needs: Mom testified that she had been attentive to A.H.’s reactions to food due to A.H.’s lactose intolerance, but the caseworker testified that A.H. was not lactose intolerant. The record indicates A.H. had a wheat-related sensitivity and that she was underweight when she went into CPS custody. See TEX. FAM. CODE ANN. § 263.307(b)(1), (10), (12); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (H)). B. A.H.’s Placement A.H. lived with foster parents during the pendency of her CPS case. See Holley, 544 S.W.2d at 372 (factors (F), (G)). Foster Mom’s home is safe and stable, and the family members provide additional stability and emotional support.viii See TEX. FAM. CODE ANN. § 263.307(b)(1), (12), (13); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (G)). Foster Mom is ensuring all of A.H.’s physical and emotional needs are being met, including her particularized diet and developmental needs. See TEX. FAM. CODE ANN. § 263.307(b)(1), (12), (13); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (G)). When A.H. first arrived, she was developmentally delayed and under a heightened care status. But during her time with her foster parents, she has begun meeting her developmental landmarks and is no longer under heightened care status. A.H. is bonded to her foster parents and is thriving. See TEX. FAM. CODE ANN. § 263.307(b)(1), (12), (13); Holley, 544 S.W.2d at 372 (factors (B), (C), (D), (G)). Foster Mom wants to adopt A.H. See Holley, 544 S.W.2d at 372 (factors (F), (G)). viii A CPS caseworker from another county initiated an investigation into the foster parents on behalf of another foster child due a scratch on the child’s arm. But the investigation was closed, and any suspected abuse was ruled out as unsupported by evidence. 04-21-00367-CV - 11 - C. Ad Litem’s Recommendation The child’s ad litem objected to any service plan extensions for Mom. See id. (factors (D), (F), (G)). The ad litem concluded it was in A.H.’s best interest for Mom’s parental rights to be terminated so that A.H. could move toward stability. D. Sufficient Evidence Having reviewed the evidence under the appropriate standards, we conclude the trial court could have “reasonably form[ed] a firm belief or conviction” that it was in A.H.’s best interest for Mom’s parental rights to be terminated. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (citing In re C.H., 89 S.W.3d at 25). Therefore, the evidence was legally and factually sufficient to support the trial court’s best-interest-of-the-child finding. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We overrule Mom’s second issue. BEST INTEREST OF THE CHILD (DAD) Dad does not challenge the trial court’s statutory grounds findings. Instead, in his sole issue, Dad argues the evidence was legally and factually insufficient to support the trial court’s finding that terminating his parental rights was in A.H.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2). Applying the applicable standards of review and Family Code and common law best interest factors, we examine the evidence pertaining to Dad and the best interest of the child. A. Dad’s Course of Conduct The trial court heard the following testimony regarding Dad’s course of conduct. Dad was not compliant with his service plan. For example, he was ordered to complete a drug assessment and treatment but did not do it. His caseworker testified that he was referred for drug testing thirteen times but only submitted to two drug tests. See In re E.R.W., 528 S.W.3d 251, 265 (Tex. 04-21-00367-CV - 12 - App.—Houston [14th Dist.] 2017, no pet.) (“[A] fact finder reasonably can infer that a parent’s failure to submit to court-ordered drug tests indicates the parent is avoiding testing because they were using illegal drugs.”). His caseworker also testified at trial that Dad was not employed, did not complete a psychiatric evaluation, did not complete domestic violence classes, and did not complete a parenting class. See TEX. FAM. CODE ANN. § 263.307(b)(10), (11), (12); Holley, 544 S.W.2d at 372 (factors (E), (H)); In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (noting lack of stable home and employment cast doubt on parent’s ability to provide for child and factors into endangerment finding); In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (noting parent’s inability to provide a stable home supports a finding that termination is in the best interest of the child). Based on the testimony of the police officer and the caseworker, Dad had a history of domestic violence with Mom, which continued even after the original termination order. See In re J.I.T.P., 99 S.W.3d at 845 (“Domestic violence, want of self control, and propensity for violence may be considered as evidence of endangerment.”). As noted above, Mom called law enforcement on June 25, 2021, to report that Dad assaulted her. See TEX. FAM. CODE ANN. § 263.307(b)(7), (12)(D), (E); Holley, 544 S.W.2d at 372 (factors (C), (H)). According to Dad’s caseworker, Dad lived with his mother and was unemployed. See TEX. FAM. CODE ANN. § 263.307(b)(11); Holley, 544 S.W.2d at 372 (factors (B), (H)). Regarding visits between Dad and A.H., the caseworker testified that Dad and A.H. bonded during their visits because Dad was able to hold baby conversations with A.H. But overall, Dad did not actively work toward gaining custody of A.H. See TEX. FAM. CODE ANN. § 263.307(b)(10), (11); Holley, 544 S.W.2d at 372 (factors (B), (D), (E), (F), (H)). B. Sufficient Evidence Having reviewed the evidence under the appropriate standards, we conclude the trial court could have “reasonably form[ed] a firm belief or conviction” that it was in A.H.’s best interest for 04-21-00367-CV - 13 - Dad’s parental rights to be terminated. See In re H.R.M., 209 S.W.3d at 108 (citing In re C.H., 89 S.W.3d at 25). Therefore, the evidence was legally and factually sufficient to support the trial court’s best-interest-of-the-child finding. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.F.C., 96 S.W.3d at 266. We overrule Dad’s sole issue

Outcome: In our review of the record, there is insufficient evidence to establish that the Indian Child Welfare Act applies to A.H. In our review of the parents’ remaining issues, we conclude that the evidence presented at trial was legally and factually sufficient for the trial court to have found by clear and convincing evidence that Mom’s course of conduct met at least one of the four statutory grounds supporting termination of her parental rights. The evidence was also legally and factually sufficient for the trial court to have found by clear and convincing evidence that terminating Mom’s and Dad’s respective parental rights was in A.H.’s best interest. Therefore, we affirm the trial court’s order

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