in the Interest of S.R. & N.R., Children ( 2022 )

Affirmed and Opinion Filed June 17, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01110-CV
IN THE INTEREST OF S.R. AND N.R., CHILDREN
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 87100
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Partida-Kipness
Opinion by Justice Partida-Kipness
Mother challenges the legal and factual sufficiency of the evidence to support
the termination of her parental rights. Mother’s criminal conduct, drug use, severe
mental health issues, instability, and violent outbursts justify the trial court’s
findings that Mother endangered the children’s well-being and that termination was
in the children’s best interest. We, therefore, affirm.
BACKGROUND
In February 2019, Mother had a psychotic incident and ransacked a house
belonging to her own mother (Grandmother) while Mother’s two youngest children,
S.R. and N.R., were present.1 When the Texas Department of Family and Protective
Services (the Department) received a referral for neglectful supervision, the
Department removed the children and petitioned to terminate Mother’s parental
rights.
The case went to trial in October 2021. Several witnesses testified concerning
Mother’s long battle with drug use and mental health problems and their effect on
her ability to parent the children, though the witnesses agreed that Mother’s most
recent bout of treatment in the months before trial had left her in a better condition
than she had been in years. Other witnesses testified concerning her extensive
criminal history and inability to maintain stable work and housing.
After hearing the evidence, a jury found that there were grounds for
termination under Texas Family Code section 161.001(b)(1)(E) and (O) and that
termination was in the children’s best interest. The trial court terminated Mother’s
parental rights in accord with these findings. Mother appealed.
STANDARD OF REVIEW
To terminate a parent–child relationship, the Department must prove two
elements by clear and convincing evidence: (1) that the parent’s actions satisfy at
least one statutory predicate ground listed in 161.001(b)(1) and (2) that termination
is in the child’s best interest. See TEX. FAM. CODE § 161.001(b). “‘Clear and
We use aliases to refer to those involved in the case in order to protect the minors’ identities. See
1
In re R.R., 26 S.W.3d 569, 571 (Tex. App.—Dallas 2000, no pet.).
–2–
convincing evidence’ means a ‘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.’” In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (quoting
TEX. FAM. CODE § 101.007). This intermediate standard falls between the
preponderance standard of most civil proceedings and the reasonable doubt standard
of criminal proceedings. Slicker v. Slicker, 464 S.W.3d 850, 858 (Tex. App.—Dallas
2015, no pet.). “The proof must weigh more heavily than merely the greater weight
of the credible evidence, but the evidence need not be unequivocal or undisputed.”
Id.In termination cases, we use a heightened standard of review that reflects the
elevated burden at trial. In re N.T., 474 S.W.3d 465, 475 (Tex. App.—Dallas 2015,
no pet.). For our legal sufficiency review, we consider all the evidence to determine
whether the fact-finder could reasonably form a firm belief or conviction that the
termination grounds were proven. Id. The reviewing court cannot ignore undisputed
evidence contrary to the finding, but it must otherwise assume the fact-finder
resolved disputed facts in favor of the finding. In re C.V.L., 591 S.W.3d 734, 748–
49 (Tex. App.—Dallas 2019, pet. denied) (citing In re A.C., 560 S.W.3d 624, 630–
31 (Tex. 2018)). We “consider all the evidence, not just that which favors the
verdict,” and we assume the fact-finder resolved disputed facts in favor of its finding
if a reasonable fact-finder could do so. N.T., 474 S.W.3d at 475. We disregard all
–3–
evidence that a reasonable fact-finder could have disbelieved or found to have been
incredible. Id.
“When reviewing the factual sufficiency of the evidence supporting a
termination finding, an appellate court asks whether, in light of the entire record, the
evidence is such that a fact-finder could reasonably form a firm conviction about the
truth of the State’s allegations against the parent.” C.V.L., 591 S.W.3d at 749.
Further, the appellate court must consider whether the disputed evidence is such that
a reasonable fact-finder could not have reconciled that disputed evidence in favor of
its finding. Id. If the disputed evidence is so significant that a fact-finder could not
reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient. Id. “And in making this determination, the reviewing court must
undertake ‘an exacting review of the entire record with a healthy regard for the
constitutional interests at stake.’” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014)
(quoting In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)).
DISCUSSION
In two issues, Mother contests the legal and factual sufficiency of the evidence
to support termination. Mother maintains the evidence is legally and factually
insufficient to support the trial court’s determinations that she endangered the
children’s physical or emotional well-being, pursuant to Texas Family Code section
–4–
161.001(b)(1)(E),2 and that termination served the children’s best interest. We
address each issue in turn.
I. Grounds for Termination under Texas Family Code Section
161.001(b)(1)(E)
To support termination under subsection (E), there must be clear and
convincing evidence that the parent has “engaged in conduct or knowingly placed
the child with persons who engaged in conduct which endangers the physical or
emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(E).
Endangering conduct under subsection (E) need not be directed at the child. In re
J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021). Nor must the child actually suffer injury.
Id. “Rather, ‘endanger’ means to expose to loss or injury; to jeopardize.” Id. (quoting
(quoting Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).
There must be “more than a threat of metaphysical injury or potential ill effects of a
less-than-ideal family environment.” In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012).
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s physical or emotional well-being was the result of the
parent’s conduct, including acts, omissions, and failures to act. In re A.T., 406
2
The trial court terminated Mother’s parental rights to S.R. and N.R. under sections
161.001(b)(1)(E) and (O) of the Family Code. Mother does not appeal the finding that termination is proper
under section 161.001(b)(1)(O). Because an order terminating a parent’s rights under subsection (D) or (E)
can be used as a basis to terminate the parent’s rights to another child under subsection 161.001(b)(1)(M),
terminating rights under (D) or (E) has “significant” collateral consequences. N.G., 577 S.W.3d at 234;
TEX. FAM. CODE § 161.001(b)(1)(M). Therefore, “due process requires an appellate court to review and
detail its analysis as to termination of parental rights under section 161.001(b)(1)(D) or (E) of the Family
Code when challenged on appeal.” In re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019).
–5–
S.W.3d 365, 370 (Tex. App.—Dallas 2013, pets. denied). Termination under
subsection (E) must be based on more than a single act or omission; a voluntary,
deliberate, and conscious course of conduct by the parent is required. In re A.R.M.,
593 S.W.3d 358, 363 (Tex. App.—Dallas 2018, pet. denied) (mem. op. on reh’g).
“Specific danger to the child’s well-being may be inferred from the parent’s
misconduct alone.” C.V.L., 591 S.W.3d at 750.
A parent’s mental health issues may be considered in determining whether a
child is endangered if those issues lead the parent to engage in conduct that is
detrimental to the child’s well-being. In re C.M.B., 204 S.W.3d 886, 895 (Tex.
App.—Dallas 2006, pet. denied); see In re J.K., No. 02-21-00199-CV, 2021 WL
5132538, at *5 (Tex. App.—Fort Worth Nov. 4, 2021) (mem. op.). It was undisputed
that Mother had serious mental health issues that were poorly managed until the year
of trial. Mother was given various diagnoses over the years, ranging from
schizoaffective bipolar disorder and PTSD to psychosis and ADHD. At one point in
the underlying proceedings, she was treated with five psychotropic medications at
once. Witnesses documented several types of delusions that Mother experienced:
• that she saw and heard demons, spirits, and dark figures giving omens that
she would harmed;
• that after a car accident, a camera crew followed her around all day to
document her affairs;
–6–
• that also after the car accident, Mother had “particle atoms” in her inner
ear that had come loose, scattered into her brain, and were affecting her
thought processes;
• that she was on the brink of developing a revolutionary toothbrush
prototype that could floss, dispense toothpaste, and brush at the same time;
• that Mother had purchased Rolex watches for the Department’s staff but
insisted that she was going to take them back and buy herself a Mercedes
Benz as a present;
• that various government officials, including a local sheriff and judge who
were not involved in the termination case, had vendettas against her and
were conspiring to take her children; Mother believed that the judge was
the father of her ex-boyfriend, and she filed a homemade domestic
violence protective order against the judge in an attempt, she said, to deter
her ex-boyfriend from breaking into her apartment;
• that while she lived at a boarding house, her roommate had placed a hidden
camera in her room to spy on her, but the roommate removed the camera
any time that the boarding house’s overseers went to look for it; and
• that Mother was pregnant and told S.R. that she was going to have a little
sister when, in fact, Mother was not pregnant.
Mother’s health issues came to a head in a hallucination-fueled incident
wherein she tore apart Grandmother’s house while the children were present and
–7–
tried to take the children from the home. That incident spurred the Department to
remove the children. Mother was committed to a mental health institution as a result,
where she tested positive for cocaine, methamphetamine, and benzodiazepines.
When speaking to doctors, Mother reportedly admitted to moderate use of the former
two drugs and regular use of the latter.
There was evidence that Mother’s health issues affected her ability to care for
the children. For example, at some Department-supervised visits with S.R. and N.R.,
Mother sat talking to herself in the corner in a daze. A Department observer
explained that when one of the children approached Mother to ask for help, Mother
was briefly brought back to reality, but she returned to mumbling to herself once the
child’s question was addressed. Likewise, Mother’s eldest daughter “Laura” was in
her twenties and had been through the foster care system after Mother’s parental
rights were terminated in an earlier case. Laura testified that she had cut off contact
with Mother for a time due to her drug use and mental health issues, which left
Mother in bed all day. Although Laura had developed an affectionate relationship
with Mother in recent years, she testified that some of Mother’s actions and remarks
were “bat-shit crazy.”
Conversely, many witnesses were hopeful for Mother’s prognosis due to
events just before trial. There was evidence that Mother had recently enrolled in a
program that gave her long-acting injections, which had dramatically improved her
mental well-being. The Department’s witnesses conceded that in her condition at the
–8–
time of trial in late 2021, Mother was capable of safely caring for the children and
that she was not physically dangerous to the children.
But there was some consensus among the witnesses that Mother’s condition
could easily deteriorate again if Mother returned to drugs or discontinued her
medications, as she had done in the past. One of Mother’s witnesses compared her
condition to a rollercoaster, wherein downswings were common.
The record reflects that Mother had an extensive criminal past and, at times,
a criminal present. “A parent’s criminal history—taking into account the nature of
the crimes, the duration of incarceration, and whether a pattern of escalating,
repeated convictions exists—can support a finding of endangerment.” J.F.-G., 627
S.W.3d at 313. Between the years of 2010 and 2015, Mother had a half dozen
convictions for prostitution, a conviction for family violence, and a drug habit in
which she used cocaine multiple times a day. While this case was pending, Mother
was arrested for and charged with three more criminal offenses on different
occasions—DWI, public intoxication, and possession of a firearm as a felon—the
last of which was a felony. Mother initially maintained that all three of these arrests
were misunderstandings and that two of the charges had been dismissed. However,
she later agreed she had in fact been convicted on the public intoxication charge,
which stemmed from an incident wherein she was found intoxicated outside her
brother’s house at 3:00 a.m., banging on the door and screaming. It was also
undisputed that the DWI charge was still pending. With her charges looming, Mother
–9–
faced the prospect of further imprisonment, which is “‘certainly a factor’ the [fact-
finder] may weigh when considering endangerment.” Id. (quoting Boyd, 727 S.W.2d
at 533); see In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no
pet.) (“[W]hen a parent is incarcerated, he or she is absent from the child’s daily life
and unable to provide support to the child, negatively impacting the child’s living
environment and emotional well-being.”).
“[A] parent’s use of narcotics and its effect on his or her ability to parent may
qualify as an endangering course of conduct.” In re J.O.A., 283 S.W.3d 336, 345
(Tex. 2009). This is no less true when the “parent engages in drug use during the
pendency of a termination suit, when [she] knows [she] is at risk of losing [her]
children.” C.V.L., 591 S.W.3d at 751. Thus, we have found that “[a] present and
future emotional and physical danger to the child” exists when, as here, the record
evidence reveals a “long standing struggle with drugs and alcohol” and a “high risk
of relapse.” In re B.B., No. 05-01-00373-CV, 2002 WL 43744, at *7–8 (Tex. App.—
Dallas Jan. 14, 2002, no pet.) (not designated for publication); cf. C.V.L., 591 S.W.3d
at 755 (rejecting an endangerment determination when “[t]he Department presented
no evidence . . . that Father had relapsed or would relapse in the future”).
Mother maintained that she had been sober from drugs and alcohol since 2015.
However, during this case, she twice tested positive for drugs, she missed many other
mandatory drug tests entirely, and she was arrested for two offenses connected with
substance abuse (DWI and public intoxication). When she was asked to address the
–10–
inconsistency between her professed sobriety and the evidence of her recent
substance abuse, Mother explained that she simply happened to be arrested for
intoxication offenses on the only two occasions that she had had anything to drink
since the case began in 2019. As to the drug tests, Mother denied any knowledge as
to how she had tested positive, but she surmised that one of the test results was likely
due to her then-boyfriend, whom she had previously described as a “big-time dope
dealer,” spiking her drink with both cocaine and methamphetamine, and the other
positive test result for cocaine was possibly due to contaminated acupuncture.
Mother’s health care providers testified that her use of street drugs could worsen her
delusions and reduce the effectiveness of her medications. See In re A.M., No. 05-
19-00412-CV, 2019 WL 4071998, at *6 (Tex. App.—Dallas Aug. 29, 2019, no pet.)
(mem. op.) (citing the connection between “appellant’s psychiatric hospital stays,
his use of illegal drugs, and his assaults on family members” among the evidence
that supported an endangerment finding). Mother also used two types of sleeping
pills to rest, which gave some witnesses concerns that Mother’s regular sedation
could prevent her from responding if the children had a nighttime emergency.
Mother displayed a pattern of instability in her housing and employment, with
at least five different residences and eight different jobs in the two-and-a-half-year
pendency of the case. “A parent’s conduct that subjects a child to a life of uncertainty
and instability endangers the child’s physical and emotional well-being.” C.V.L.,
591 S.W.3d at 750.
–11–
To Mother’s credit, there was evidence that she had made great strides in the
months leading up to trial, having graduated from college and improved her housing
and health situation. But witnesses testified that Mother made little progress in the
first two years of the case, during which a termination trial is usually conducted. It
was only in the eight months before trial, in an unusual period of delay created by
the Covid pandemic, that she made headway while enrolled in an intensive treatment
program, and there was no guarantee that she would continue that program after the
termination proceedings concluded. The jury, as the ultimate judge of credibility and
weight, was free to conclude that these belated changes did not eliminate the element
of danger that Mother had introduced into the children’s lives. See, e.g., In re E.W.A.,
No. 2-07-135-CV, 2008 WL 1867144, at *13 (Tex. App.—Fort Worth Apr. 24,
2008, no pet.) (mem. op.) (affirming a termination against a factual sufficiency
challenge despite evidence that the parents had “made significant, if belated, changes
and improvements in their lives”).
Under this record, we conclude the evidence is both legally and factually
sufficient to support the first prong of the termination inquiry. We overrule Mother’s
sufficiency challenges to the trial court’s determination that she endangered the
children.
II. Best Interest of the Children
The evidence outlined above also tends to establish the second termination
prong, best interest, which “is child-centered and focuses on the child’s well-being,
–12–
safety, and development.” A.C., 560 S.W.3d at 631. “Proof of acts or omissions
providing grounds for termination under section 161.001(b)(1) does not relieve the
petitioner from proving the best-interest element, but the same evidence may be
probative of both.” Id. at 631–32. A best-interest determination is guided by the
Holley factors : (1) the child’s desires; (2) the child’s present and future emotional
and physical needs; (3) any present or future emotional and physical danger to the
child; (4) the parental abilities of the individuals seeking custody; (5) the programs
available to assist the individuals seeking custody to promote the child’s best
interest; (6) the plans for the child by the individuals or agency seeking custody; (7)
the stability of the home or proposed placement; (8) the parent’s acts or omissions
which may indicate that the existing parent–child relationship is improper; and (9)
any excuse for the parent’s acts or omissions. In re E.C.R., 402 S.W.3d 239, 249 n.9
(Tex. 2013) (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). A court
need not have evidence on every factor to make a valid finding as to the child’s best
interest. C.H., 89 S.W.3d at 27.
Viewed through the lens of this multifactor test, Mother’s criminal conduct,
persistent drug use, severe mental health issues, violent outbursts, and the
uncertainty and instability she imposed on the children weigh heavily in favor of the
jury’s best-interest determination.
Beyond that evidence, there was also proof that related to certain of the factors
individually. As to the children’s desires, there was evidence that S.R. wanted to
–13–
continue having visits with Mother, but she did not want to return to live with
Mother, and N.R. was too young to express her views. As to Mother’s parental
abilities, there was testimony that Mother would only be able to raise the children
by relying heavily on her support system, which largely consisted of relatives, but
the Department’s witnesses questioned whether some of Mother’s relatives were
suitable caregivers in light of their criminal history. As to plans for the children and
the stability of the proposed home, there was evidence that S.R. and N.R. had bonded
with their foster parents, who were unanimously described as exceptional caregivers
who had already adopted three foster children in the past. “Evidence about
placement plans and adoption are, of course, relevant to best interest.” C.H., 89
S.W.3d at 28. Finally, the Department’s witnesses testified that overall, termination
of Mother’s parental rights was in the children’s best interest.
We conclude that the evidence is legally and factually sufficient to support
the best-interest prong of our termination inquiry. See J.F.C., 96 S.W.3d at 266. The
trial court did not err by terminating Mother’s parental rights. We overrule Mother’s
challenge to the best interest finding.
Because we affirm the trial court’s termination order, we need not consider
Mother’s third issue regarding the appointment of the Department as sole managing
conservator. See In re I.N.D., No. 04-20-00121-CV, 2020 WL 2441375, at *7 (Tex.
App.—San Antonio May 13, 2020, pet. denied) (mem. op.); In re K.N.D., No. 01-
–14–
12-00584-CV, 2014 WL 3970642, at *10 (Tex. App.—Houston [1st Dist.] Aug. 14,
2014, no pet.) (mem. op. on reh’g).
CONCLUSION
The evidence is legally and factually sufficient to support the termination.
Accordingly, we affirm the trial court’s judgment.
/Robbie Partida-Kipness/
211110f.p05 ROBBIE PARTIDA-KIPNESS
JUSTICE
–15–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF S.R. AND On Appeal from the 196th Judicial
N.R., CHILDREN District Court, Hunt County, Texas
Trial Court Cause No. 87100.
No. 05-21-01110-CV Opinion delivered by Justice Partida-
Kipness. Justices Schenck and
Osborne participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
Judgment entered this 17th day of June, 2022.
–16–