in the Interest of J.R.R. and R.N.R., Children ( 2021 )

Opinion filed May 28, 2021
In The
Eleventh Court of Appeals
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No. 11-20-00273-CV
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IN THE INTEREST OF J.R.R. AND R.N.R., CHILDREN
On Appeal from the 446th District Court
Ector County, Texas
Trial Court Cause No. E-19-050-PC
MEMORANDUM OPINION
This is an appeal from orders in which the trial court terminated the parental
rights of the mother of J.R.R. and R.N.R.1 The mother filed this appeal. On appeal,
she presents five issues in which she challenges the legal and factual sufficiency of
the evidence to support the trial court’s findings. We affirm the trial court’s orders
of termination.
I. Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2020). To terminate
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We note that the father voluntarily relinquished his parental rights to J.R.R. and that he was
appointed as R.N.R.’s permanent managing conservator.
parental rights, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id.In this case, the trial court found that Appellant had committed four of the acts
listed in Section 161.001(b)(1)—those found in subsections (D), (E), (N), and (O).
Specifically, the trial court found (1) that Appellant had knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered the children’s physical or emotional well-being, (2) that Appellant had
engaged in conduct or knowingly placed the children with persons who engaged in
conduct that endangered the children’s physical or emotional well-being, (3) that
Appellant had constructively abandoned the children, and (4) that Appellant had
failed to comply with the provisions of a court order that specifically established the
actions necessary for her to obtain the return of the children, who had been in the
managing conservatorship of the Department of Family and Protective Services for
not less than nine months as a result of the children’s removal from the parents for
abuse or neglect. The trial court also found, pursuant to Section 161.001(b)(2), that
termination of Appellant’s parental rights would be in the best interest of each child.
To determine if the evidence is legally sufficient in a parental termination case,
we review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the
evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or
conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002). We note that the trial court is the sole arbiter of the credibility
and demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (citing In
re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
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With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (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 parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
II. Evidence Presented at Trial
The record shows that the Department became involved with Appellant in
April 2019 as a result of allegations of physical abuse and neglectful supervision
against Appellant with respect to her then four-year-old daughter, R.N.R. During
the Department’s investigation of these allegations, Appellant was uncooperative
initially. She subsequently exhibited hysterical and erratic behavior at R.N.R.’s
school while the Department’s investigator was trying to interview R.N.R. The
Department was very concerned about Appellant’s behavior; those concerns related
to Appellant’s mental health and possible substance abuse. At the Department’s
request, Appellant submitted to a drug test; she tested positive for amphetamine,
methamphetamine, MDMA (Ecstasy), cocaine, and marihuana. Appellant
subsequently refused to submit to most of the Department’s requests for drug testing.
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However, approximately two months prior to the final hearing, Appellant again
tested positive for amphetamine, methamphetamine, and marihuana. Appellant had
no negative drug screens and admitted to the use of marihuana only. She also
asserted that the Department had falsified her drug test results.
After the initial intake, the Department received additional intakes relating to
concerns of sexual abuse of the children and inappropriate sexual behavior by the
children. The Department also had concerns about domestic violence between the
parents. The children were removed from the parents’ care and placed with
Appellant’s parents. The licensed counselor that assisted in the case below later
suggested that the children be separated because of an outcry made by R.N.R. against
her older brother, J.R.R. R.N.R. had told the counselor that, while the maternal
grandmother was at work, J.R.R. had been coming into R.N.R.’s room, pulling
R.N.R.’s pants down, and touching her privates and her “hiney.” After her outcry,
R.N.R. was placed with her father, and J.R.R. remained with the maternal
grandparents. The children remained in these separate placements until the final
hearing.
Appellant and the Department participated in the creation of a family service
plan. The trial court made the family service plan an order of the court. Appellant
complied with several of the provisions of her service plan. However, she failed to
submit to drug testing as required, failed to maintain a stable home and was homeless
at times, failed to complete a psychiatric evaluation, and continued to test positive
for illegal drugs. Additionally, while this case was pending below, Appellant was
arrested and charged with making terroristic threats, possessing methamphetamine
on two separate occasions, and burglary of a building. Her arrest for making
terroristic threats related to this case: she had made death threats to the Department’s
conservatorship caseworker and the children’s father. The father later obtained a
protective order against Appellant in order to protect both himself and R.N.R.
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The counselor testified that Appellant was unable to think in a reasonable and
logical manner, that she was very delusional, and that she did not progress despite
the counseling sessions. According to the counselor, Appellant had negatively
influenced the children by telling them “crazy” things, especially things about their
father. The counselor did not know whether Appellant’s psychosis was drug related
or inherited. Regardless, she said, Appellant’s behavior posed a danger to her
children.
The Department’s plans for J.R.R. were for him to be adopted by his maternal
grandparents, a plan with which the father agreed. J.R.R. wanted to maintain a
relationship with Appellant and had previously expressed a desire “to stay with
Grannie and Mommy.” By the time of the final hearing, J.R.R.’s desire, as expressed
to the conservatorship worker, was “to just stay with Grandpa.”
The Department’s plans for R.N.R. were for her to remain with her father. By
all accounts other than Appellant’s, R.N.R. was happy with her father and was doing
very well in his care.
The Department’s conservatorship caseworker and the father believed that it
would be in each child’s best interest for Appellant’s parental rights to be terminated.
The children’s attorney ad litem, however, did not advocate for the termination of
Appellant’s rights to J.R.R. because J.R.R. continued to express a desire to maintain
a relationship with Appellant.
III. Analysis
A. Endangering Conduct
In her first, second, third, and fourth issues, Appellant challenges the legal and
factual sufficiency of the evidence to prove grounds (D), (E), (N), and (O). We need
only address her challenge to the trial court’s finding under Section
161.001(b)(1)(E). See In re N.G., 577 S.W.3d 230, 234–35 (Tex. 2019) (addressing
due process and due course of law with respect to appellate review of grounds (D)
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and (E) and holding that an appellate court must provide a detailed analysis if
affirming the termination on either of these grounds).
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex.
App.—Eastland 2011, no pet.). Additionally, 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 D.T., 34 S.W.3d 625, 634 (Tex.
App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex.
App.—Eastland 1999, no pet.). The offending conduct need not be directed at the
child, nor does the child actually have to suffer an injury. In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009). Drug use may constitute evidence of endangerment. Id. A
parent’s drug addiction and its effect on the parent’s life and ability to parent a child
may establish an endangering course of conduct. In re J.T.G., 121 S.W.3d 117, 125–
26 (Tex. App.—Fort Worth 2003, no pet.) (citing Dupree v. Tex. Dep’t of Protective
& Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ)).
Here, based upon evidence of Appellant’s use of drugs (including
methamphetamine) while the children were in her care, Appellant’s continued use of
methamphetamine thereafter, Appellant’s threats to kill the father while he had
custody of R.N.R., and Appellant’s unresolved mental health issues, the trial court
could have reasonably found by clear and convincing evidence that Appellant had
engaged in a course of conduct that endangered her children. Therefore, we hold
that the evidence is legally and factually sufficient to uphold the trial court’s finding
as to Appellant under subsection (E). Accordingly, we overrule Appellant’s second
issue. Because only one statutory ground is necessary to support termination and
because we have upheld the trial court’s finding as to subsection (E), we need not
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address Appellant’s first, third, and fourth issues. See FAM. § 161.001(b)(1); N.G.,
577 S.W.3d at 234–35; see also TEX. R. APP. P. 47.1.
B. Best Interest
In her fifth issue, Appellant challenges the legal and factual sufficiency of the
evidence to support the trial court’s findings that termination of her parental rights
would be in the best interest of J.R.R. and R.N.R.
With respect to the children’s best interest, the evidence, as set forth above,
shows that Appellant used methamphetamine and other drugs while the children
were in her care, continued to use methamphetamine after the children were removed
from her care, engaged in erratic behavior, had delusional thoughts, threatened to
kill the father, threatened to kill the conservatorship caseworker, failed to complete
the services that were required for the children to be returned to her, and failed to
obtain and maintain a stable environment for her children. Instead, and although she
denied ever using methamphetamine, Appellant apparently continued to choose
methamphetamine over her children, and she accepted no responsibility for her
children being removed from her.
J.R.R. lived with his maternal grandparents and, at the time of trial, wished to
remain there even though he wanted to maintain a relationship with Appellant.
R.N.R. never told her counselor that she missed Appellant or wanted to see her.
Without the termination of Appellant’s parental rights, there would be a continued
concern for the safety of both children. Appellant had not demonstrated an ability
or a willingness to put her children’s needs ahead of her own; had minimized the
seriousness of her drug use, her mental health issues, and her neglect of the children;
and had been unable to show that she could provide a safe, stable home for the
children. Further, the conservatorship caseworker and the father testified that it
would be in J.R.R.’s and R.N.R.’s best interests to terminate Appellant’s parental
rights.
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We hold that, in light of the evidence presented at trial and applying the Holley
factors, the trial court could reasonably have formed a firm belief or conviction that
termination of Appellant’s parental rights would be in J.R.R.’s and R.N.R.’s best
interest. See Holley, 544 S.W.2d at 371–72. Upon considering the record as it relates
to the desires of the children, the emotional and physical needs of the children now
and in the future, the emotional and physical danger to the children now and in the
future, the parental abilities of those involved, the plans for the children by the
Department, Appellant’s continued use of methamphetamine, and the instability of
Appellant’s situation, we further hold that the evidence is legally and factually
sufficient to support the trial court’s findings that termination of Appellant’s parental
rights is in the best interest of J.R.R. and R.N.R. See id. We defer to the trial court’s
findings as to the children’s best interest, see C.H., 89 S.W.3d at 27, and we cannot
hold in this case that the trial court’s findings as to best interest are not supported by
clear and convincing evidence. Accordingly, we overrule Appellant’s fifth issue.
IV. This Court’s Ruling
We affirm the orders of the trial court.
W. STACY TROTTER
JUSTICE
May 28, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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