in the Interest of C.C.M., C.M., C.C.M., C.C.M., Children ( 2020 )

NUMBER 13-20-00020-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF C.C.M., C.M., C.C.M., C.C.M., CHILDREN
On appeal from the County Court at Law
of Aransas County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Hinojosa
Memorandum Opinion by Chief Justice Contreras
This appeal concerns the parental rights to minor children C.C.M., C.M., C.C.M.,
and C.C.M.1 Appellant R.C.M., the biological mother of the children, contends by one
issue that the evidence was legally and factually insufficient to support a finding that
termination of her parental rights was in the children’s best interests. We affirm.
1 We refer to the children and their parents by their initials in accordance with the rules of appellate
procedure. See TEX. R. APP. P. 9.8(b)(2).
I. BACKGROUND
The four female children at issue in this case were born in 2009, 2010, 2015, and
2016. At the termination trial,2 Leslie Mayfield testified that she was an investigator for
appellee, the Department of Family and Protective Services (the Department), from 2017
to 2019. On November 24, 2018, the Department received a report that R.C.M. was using
“illegal substances in sight of the children”; that she was “using rent money to support her
drug habits”; that she did not have a “clean environment to live in or food for the children
to eat”; and that the children “were constantly missing school” because R.C.M. did not
have clean clothes for them. Three days later, Mayfield made contact with R.C.M. and
the children at a motel in Aransas Pass, and she asked R.C.M. to take an oral swab drug
test. R.C.M. agreed and told Mayfield she would test positive for marijuana; in fact, the
test returned negative for marijuana but positive for methamphetamine. When Mayfield
returned to the motel to inform R.C.M. of the drug test result, she discovered R.C.M. and
the children were no longer there. Mayfield later learned that R.C.M. had been
incarcerated and the children were staying with their aunt.
According to Mayfield, she was concerned about the children staying with their
aunt because the aunt “was unable to obtain a power of attorney” from the children’s
parents “in order to continue meeting the children’s medical and educational needs.” For
example, on January 3, 2019, the oldest child had to be taken to the emergency room
due to a “bad rash on her neck and head,” but she could not receive any follow-up care
because the aunt did not have health insurance and was not authorized to obtain medical
2The trial also concerned the parental rights of the children’s father, R.M. The parents were each
represented by counsel at trial; R.C.M. appeared personally by telephone, whereas R.M. did not appear.
The judgment on appeal terminates both parents’ rights to the children. R.M. is not a party to this appeal.
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care for the children.
Mayfield testified that the Department had previously been involved with the family
in 2009, when both parents tested positive for marijuana; in 2010, when R.C.M. tested
positive for drugs during a pre-natal exam, though she tested negative at birth; again in
2010, when there was a report alleging the oldest child “received a skull fracture with
minimal explanation”; and in January 2017, when both parents tested positive for cocaine
and marijuana, and one of the children admitted to “picking up something that started with
a W that fell out of a cigarette and it was understood that weed had fallen out.” According
to Mayfield, this history was concerning because it “showed continued use of illegal
substances and . . . failed attempts using family-based safety services to prevent
removal.” She stated the Department ultimately sought removal of the children because
R.C.M. “was in jail, she tested positive for drugs, and we needed a legal way for the
children to get the medical care that they needed.”
Maddalena Robertson, a Department caseworker, testified that she was assigned
to the case in December 2018. After an adversary hearing on January 18, 2019,
Robertson made contact with R.C.M. and scheduled a meeting for January 24, but R.C.M.
did not show up. When Robertson tried again to contact R.C.M. in March, the phone
number she had for R.C.M. “was not accepting any phone calls.” Robertson obtained a
different phone number from R.C.M.’s mother, but she was not able to reach R.C.M. that
way either. She was later able to set up a meeting with R.C.M. “for a family group
conference at the end of March,” but again, R.C.M. did not appear. She tried and failed
to make contact with R.C.M. in April and May. Eventually, Robertson made contact with
R.C.M. in July 2019 while R.C.M. was in the San Patricio County Jail. At that time, R.C.M.
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explained to Robertson that she was previously absent from court because “she was
afraid of getting arrested.” Robertson stated R.C.M. “was worried about the children and
wondering how the children were doing.” By August, R.C.M. was released from jail, but
Robertson did not have updated contact information for her. Robertson next met with
R.C.M. in December 2019, again while R.C.M. was detained at the San Patricio County
Jail. Robertson did not know how long R.C.M. is expected to be incarcerated, but she
agreed that R.C.M. is facing a felony charge.
R.C.M. signed a service plan, proposed by the Department, requiring her to
provide a safe home environment and to participate in supervised visitation, individual
counseling, random drug testing, and substance abuse assessment. However, according
to Robertson, R.C.M. did not participate in any visitation, did not submit to random drug
testing, and did not undergo a substance abuse assessment.
Robertson stated that the children have been living in Rockport with their paternal
grandmother M.S. since August 2019, and “[t]hey’re doing very well” there. She stated
that M.S. is able to meet all of the children’s educational and medical needs and is willing
to take care of the children long-term. Robertson said the children are “worried they would
not get to see their father again,” but are “upset that [R.C.M.] has not attempted to see
them or to do anything to better her situation to have her back in their life.” She opined
that termination of both parents’ rights would be in the children’s best interests. On cross-
examination, she agreed that there were no services which R.C.M. could have
participated in at the San Patricio County Jail.
M.S. testified that she now supports termination of parental rights for both parents,
though she initially believed that permanent managing conservatorship with permanency
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care assistance (PCA) would be more appropriate.
With respect to R.C.M., the trial court found predicate grounds for termination
under paragraphs (D), (E), (N), and (O) of family code § 161.001(b)(1), and that
termination of her parental rights was in the best interests of the children. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(D), (E), (N), (O), (b)(2). This appeal followed.
II. DISCUSSION
A. Standard of Review and Applicable Law
Involuntary termination of parental rights involves fundamental constitutional rights
and divests the parent and child of all legal rights, privileges, duties and powers normally
existing between them, except for the child’s right to inherit from the parent. Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—
Corpus Christi—Edinburg 2010, no pet.); see In re K.M.L., 443 S.W.3d 101, 121 (Tex.
2014) (Lehrmann, J., concurring) (“Termination of parental rights, the total and irrevocable
dissolution of the parent-child relationship, constitutes the ‘death penalty’ of civil cases.”).
Accordingly, termination proceedings must be strictly scrutinized. In re K.M.L., 443
S.W.3d at 112. In such cases, due process requires application of the “clear and
convincing” standard of proof. Id. (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). This intermediate standard falls between
the preponderance of the evidence standard of ordinary civil proceedings and the
reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d 846, 847
(Tex. 1980); In re L.J.N., 329 S.W.3d at 671. It is defined as 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.” TEX. FAM. CODE ANN. § 101.007.
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In reviewing the legal sufficiency of the evidence supporting termination, we “look
at all the evidence 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.” In re J.L., 163 S.W.3d 79, 85 (Tex. 2005); In re L.J.N., 329 S.W.3d at 671. We must
assume that the fact finder resolved disputed facts in favor of its finding if it was
reasonable to do so, and we must disregard all evidence that a reasonable fact finder
could have disbelieved or found to be incredible. In re L.J.N., 329 S.W.3d at 671. We
must also consider undisputed evidence, if any, that does not support the finding. In re
K.M.L., 443 S.W.3d at 113; see In re J.F.C., 96 S.W.3d at 266 (“Disregarding undisputed
facts that do not support the finding could skew the analysis of whether there is clear and
convincing evidence.”).
When reviewing the factual sufficiency of the evidence supporting termination, we
determine “whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction about the truth of the [Department]’s allegations.” In re C.H., 89
S.W.3d 17, 25 (Tex. 2002). In conducting this review, we consider whether the disputed
evidence is such that a reasonable finder of fact could not have resolved the disputed
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “If, in light of the entire
record, the disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that a factfinder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” Id.
The court may order termination of the parent-child relationship if it finds by clear
and convincing evidence that: (1) the parent committed an act or omission described in
family code § 161.001(b)(1); and (2) termination is in the best interest of the child. TEX.
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FAM. CODE ANN. § 161.001(b); In re J.L., 163 S.W.3d at 84. Here, only the best interest
finding is at issue.
There is a strong, though rebuttable, presumption that keeping a child with a parent
is in the child’s best interest. TEX. FAM. CODE ANN. § 153.131; In re R.R., 209 S.W.3d 112,
116 (Tex. 2006). Factors that we consider in determining whether termination of parental
rights is in a child’s best interest include: (1) the desires of the child; (2) the emotional and
physical needs of the child now and in the future; (3) the emotional and physical danger
to the child now and in the future; (4) the parenting abilities of the parties seeking custody;
(5) the programs available to assist the parties seeking custody; (6) the plans for the child
by the parties seeking custody; (7) the stability of the home or proposed placement; (8)
the acts or omissions committed by the parent which may indicate that the existing parent-
child relationship is not proper; and (9) any excuse for the acts or omissions committed
by the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). The party seeking
termination is not required to prove all nine Holley factors; in some cases, undisputed
evidence of just one factor may be sufficient to support a finding that termination is in the
best interest of the child. In re C.H., 89 S.W.3d at 25, 27.
B. Analysis
As to the first Holley factor, Robertson stated that, though the children are “worried”
about not seeing their father again, they did not express such concerns about their
mother; rather, they were “upset that [R.C.M.] has not attempted to see them or to do
anything to better her situation to have her back in their life.” There was no other evidence
concerning the desires of the children.
As to the second Holley factor, there was no evidence that the children have any
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specific emotional or physical needs beyond those typical for their respective ages.
Relevant to the third Holley factor, regarding emotional and physical danger, is
evidence of R.C.M.’s persistent use of illegal drugs. R.C.M. and R.M. both tested positive
for marijuana in 2010; R.C.M. again tested positive for an unspecified drug at a pre-natal
medical exam in 2010; both parents tested positive for cocaine and marijuana in 2017;
and R.C.M. tested positive for methamphetamine in 2018. According to Mayfield, in 2017,
one of the children admitted to picking up marijuana that had fallen out of a cigarette. A
parent’s drug use supports a finding that termination is in the best interest of the child.
See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.); In re K.C.,
219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.) (noting that the fact-finder can
give “great weight” to the “significant factor” of drug-related conduct by a parent). This
evidence is also relevant to the fourth Holley factor, regarding parenting abilities; and the
eighth factor, regarding acts indicating the parent-child relationship is improper.
Additionally, Mayfield testified that the Department received a report in November
2018 that R.C.M. was using drugs in front of the children, did not have a clean
environment for the children to live in, and was unable to provide food or clean clothes
for the children. Mayfield did not testify to these facts from her own personal knowledge;
however, no party objected to the testimony. Therefore, even if the testimony is
considered inadmissible hearsay, we must consider it in our analysis. See TEX. R. EVID.
802 (“Inadmissible hearsay admitted without objection may not be denied probative value
merely because it is hearsay.”). This testimony is relevant to the third, fourth, seventh,
and eighth Holley factors.
With respect to services available to R.C.M., the fifth Holley factor, the evidence
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established that R.C.M. failed to comply with her obligations under the Department’s
service plan regarding visitation, random drug testing, and substance abuse assessment.
Although services were not available to R.C.M. while she was in jail, there was no
explanation given for why she failed to comply with these provisions in 2019 during the
months she was not incarcerated.
We finally consider the sixth and seventh Holley factors, concerning the plans for
the children and the stability of the home or proposed placement. R.C.M. has not had
stable employment or housing during the pendency of this case, and she has not kept
Department representatives apprised of her whereabouts or contact information. When
Mayfield first made contact with R.C.M., she was living with the children in a motel. When
Mayfield returned to alert R.C.M. of her positive methamphetamine test, the family was
no longer there. In fact, R.C.M. had been incarcerated, and though the children were
staying with their aunt, R.C.M. did not ensure that the aunt had the authorizations
necessary to provide the children with medical care. Later, R.C.M. failed to appear for at
least two meetings with Robertson. She did not testify at trial and there is no other
evidence in the record regarding her plans to provide the children with a stable, safe
environment. At the time of trial, she was incarcerated and facing a felony charge. On the
other hand, Robertson stated the children are doing very well in their current placement
with M.S., who is able to meet their needs and is willing to care for them long-term.
A child’s need for permanence through the establishment of a “stable, permanent
home” has been recognized as the paramount consideration in determining best interest.
In re G.A.C., 499 S.W.3d 138, 141 (Tex. App.—Amarillo 2016, pet. denied); In re K.C.,
219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.); see TEX. FAM. CODE ANN.
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§ 263.307(a) (providing that, in considering whether parents are willing and able to
provide a safe environment, “the prompt and permanent placement of the child in a safe
environment is presumed to be in the child’s best interest”). A factfinder may consider the
consequences of failure to terminate parental rights and may also consider that the
children’s best interest may be served by termination so that adoption may occur, rather
than the impermanent foster-care arrangement that would result in the absence of
termination. See In re K.C., 219 S.W.3d at 931. The evidence set forth above shows that
R.C.M. was unable to provide a stable environment for the children and therefore
supports the trial court’s best interest finding.
R.C.M. argues that the Department did not explain to M.S. that the PCA program
would have provided M.S. with funds for childcare without the need to terminate the
parent-child relationship. See TEX. FAM. CODE ANN. §§ 264.851–.856. She contends that
M.S. testified termination was in the children’s best interest only because M.S. believed
adoption was the only way for her to receive financial assistance in caring for the children.
R.C.M. notes correctly that terminating a parent’s rights so that someone else can obtain
financial subsidies upon adoption is not an appropriate basis on which to base a best
interest finding. See In re E.D., 419 S.W.3d 615, 619 (Tex. App.—San Antonio 2013, pet.
denied). But here, when asked whether the Department tried to “convince” M.S. to support
termination, Robertson testified that “[t]he options were explained to her.” Though R.C.M.
raises suspicion regarding M.S.’s abrupt decision at trial to support termination, she
directs us to no evidence, and we find none, indicating that M.S. was unaware of the
benefits available under the PCA program or that her decision to support termination was
motivated by financial concerns.
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Considering all the evidence in the light most favorable to the judgment, we
conclude that a reasonable trier of fact could have formed a firm belief or conviction,
based on clear and convincing evidence, that termination of R.C.M.’s parental rights was
in the best interest of the children. See In re J.L., 163 S.W.3d at 85. Further, the evidence
to the contrary was not so significant as to preclude such a finding. See In re J.F.C., 96
S.W.3d at 266. The evidence was legally and factually sufficient to overcome the strong
presumption that keeping the children with their biological mother is in their best interest.
See TEX. FAM. CODE ANN. § 153.131. We overrule R.C.M.’s issue on appeal.
III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS
Chief Justice
Delivered and filed the
9th day of April, 2020.
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