in the Interest of C.W., C.W., and F.S.W., Children ( 2022 )

Opinion filed January 27, 2022
In The
Eleventh Court of Appeals
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No. 11-21-00163-CV
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IN THE INTEREST OF C.W., C.W., AND F.S.W., CHILDREN
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV 1710402
MEMORAND UM OPI NI ON
This is an appeal from an order of termination with respect to the parental
rights of the parents of C.W., C.W., and F.S.W. The children’s mother and the
biological father of two of the children appealed to this court. 1 On appeal, the mother
presents one issue in which she challenges the sufficiency of the evidence, and the
father presents two issues in which he challenges the sufficiency of the evidence.
We affirm in part, and we reverse and remand in part.
1
The biological father of the eldest child (C.W.1) voluntarily relinquished his parental rights and
did not appeal. Consequently, in this opinion, when we refer to “the father,” we are referring to the father
who filed this appeal: the biological father of the two youngest children (C.W.2 and F.S.W.).
Procedural Background, Termination Findings, and Standards
In 2017, the Department of Family and Protective Services filed a suit
affecting the parent–child relationship (SAPCR) in which it sought the termination
of the parents’ rights to the three children involved in this case. In 2019, the trial
court entered a final SAPCR order in which it appointed the Department as the
children’s permanent managing conservator, appointed the parents as possessory
conservators with limited rights, and denied all other relief. In February 2021, the
Department filed a petition to modify the 2019 SAPCR order. In the petition to
modify, the Department alleged termination grounds pursuant to Section 161.001(b)
and Section 161.004 of the Texas Family Code. See TEX. FAM. CODE ANN.
§ 161.001(b) (West Supp. 2021), § 161.004 (West 2014). 2
In July 2021, the trial court conducted a hearing on the petition to modify and,
in August 2021, signed the order of termination that is at issue in this appeal. The
trial court’s order of termination includes termination findings made pursuant to both
Section 161.001(b) and Section 161.004 of the Texas Family Code. The trial court
found, pursuant to Section 161.004, that “there has been a material and substantial
change of circumstances of the [parents] and the children since entry of the Prior
Order.” See id. § 161.004(a)(2). The trial court also found that the mother and the
father had committed one of the acts listed in Section 161.001(b)(1)—specifically,
that the mother and the father had failed to comply with the provisions of a court
order that specifically established the actions necessary for them 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
2
We note that Section 161.004 sets out the requirements for termination of “the parent-child
relationship after rendition of an order that previously denied termination of the parent-child relationship.”
FAM. § 161.004(a). Section 161.004 has been regarded as a mechanism through which the Department
may, upon proving a material change in the circumstances of an affected party, defeat a parent’s claim of
res judicata when the Department seeks termination after a prior petition seeking termination was denied.
In re K.G., 350 S.W.3d 338, 349 (Tex. App.—Fort Worth 2011, pet. denied).
2
children’s removal from the parents for abuse or neglect. See id. § 161.001(b)(1)(O).
Additionally, the trial court found that termination of the parents’ parental rights
would be in the best interest of the children. See id. §§ 161.001(b)(2), .004(a)(4).
In their appellate issues, the parents challenge the findings made by the trial
court. To terminate 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. 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)).
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
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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.
Evidence at Trial
At the 2021 bench trial on the petition to modify, the trial court first addressed
a Rule 11 agreement that involved the mother’s parental rights. See TEX. R.
CIV. P. 11. The mother’s attorney stated on the record that she had circulated a
Rule 11 agreement and that all parties had agreed to its terms. The written agreement
was not offered at trial, but the mother’s attorney stated in open court that the parties
agreed to the following:
[T]hat the parental rights of [the mother] will be terminated on O
grounds only and no additional grounds, and we would ask that while
the children remain in care, prior to an adoption, that [the permanency
case manager for the children] provide monthly pictures and email
updates to [the mother], and then we also agreed that [the mother] not
be present today.
Counsel for the Department confirmed that the parties had entered into a Rule 11
agreement and that the terms of the agreement were accurately set forth in open court
by the mother’s attorney. The father’s attorney and the attorney and guardian ad
litem for the children also confirmed their participation and joinder in the Rule 11
agreement.
The trial court then stated that the parties had “announced on the record a
Rule 11 Agreement providing for the mother’s rights to be terminated only on the
161.001(b)(1)(O) grounds of the Texas Family Code.” The mother’s attorney
acknowledged that the trial court’s summation of the Rule 11 agreement was
accurate.
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After the discussion about the Rule 11 agreement, the Department called one
witness to testify: Hailey Smith, the permanency case manager. Smith
acknowledged the Department’s participation in, and agreement to, the Rule 11
agreement. Smith testified further that the mother had not completed the services in
her service plan and that it would be in the children’s best interest for the mother’s
parental rights to be terminated.
With respect to the father, Smith acknowledged that “at the beginning of this
case,” a family service plan was created for the father and was made an order of the
court. No family service plan was offered into evidence. However, it appears from
Smith’s testimony that she was referring to the father’s 2017 family service plan
because she referenced the father’s 2018 participation in individual counseling as
required by his service plan.
Smith testified that the father did not comply with his service plan because he
had not obtained stable housing. When Smith took over the case in June 2020, the
father was living in his car. He then moved to a pop-up camper at a friend’s house—
where he lived for approximately six months; the camper was dirty and had no
running water or working utilities. At the time of trial, the father was again living in
his car. The father told Smith that he would soon be moving into a trailer house.
Smith testified that the father had done relatively well on other requirements
of his service plan, except that he still maintained some contact with the mother (who
continued to use illegal substances). The Department’s main concern with the father
was his inability to provide appropriate housing for the children—a concern that had
not changed since the case began in 2017.
The father testified that he had steady employment and was still paying child
support. He explained that, at the time of trial, he had rented a trailer house but that
the landlord had postponed the father’s move-in date for an extra week. The father
testified that, the day before trial, he had confirmed with the office at Yellow Rose
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Estates that “they are doing a make-ready on it.” The father further explained that
he was previously unable to obtain government housing during the pendency of this
case because his rental history contained an eviction or two. He said that he had
been trying his best for four years.
The father testified that he appreciated all that the foster parents had done for
the children, but he indicated that he loved the children and wanted them back. The
father considered all three of the children to be his even though he knew he was not
the biological father of C.W.1. The father testified that he was present for C.W.1’s
birth and had “been his father ever since he come out.” The father believed that the
best thing for the children would be for him “to get this house” and for the children
to be returned to him.
At the time of trial, the children had lived with the same foster parents for over
three and one-half years. All three children had been placed together in the same
foster home in 2017. The children were “very bonded” to their foster parents and
were “very well taken care of.” Smith indicated that this placement was a “potential
adoptive placement.” The foster mother’s testimony indicated that the foster parents
planned to adopt the children.
The trial court was asked to interview the children. The trial court spoke with
C.W.1 and C.W.2, who were ten years old and nine years old, respectively. However,
seven-year-old F.S.W. did not wish to talk to the trial court. After conferring with
C.W.1 and C.W.2, the trial court stated on the record that it understood that these two
children enjoyed living with their foster parents and would not mind staying there
long-term but that they also enjoyed their visits with the father and expressed “some
interest in possibly living with him.”
On the Department’s request, the trial court took judicial notice of the
permanency report that was filed on November 23, 2020, including the information
contained therein. The permanency report contained information about the children
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and their progress, information about the parents and their progress, and the
Department’s recommendation for the children. In the November 2020 permanency
report, which was signed by Smith and was the “most recent report” of the
Department, the Department’s recommendation for the children was that they remain
in their current placement with the Department as their permanent managing
conservator.
The permanency report showed that the mother tested positive for
methamphetamine—multiple times—both before and after the 2019 SAPCR order.
With respect to the father, the permanency report showed that the father did not have
stable housing. The report also showed, however, that all of the father’s drug tests
were negative, that the father attended all of his biweekly visits with the children,
that the father had a steady job, and that the father had provided items for the children
when he was financially able to do so.
We note that, other than the November 2020 permanency report, the trial court
was not asked to take judicial notice of evidence from a previous hearing.
Furthermore, nothing in the record indicates that the trial court considered any other
previously presented evidence. See FAM. § 161.004(b) (providing that, at a hearing
under Section 161.004, “the court may consider evidence presented at a previous
hearing”).
Analysis
As we stated above, the termination of parental rights must be supported by
clear and convincing evidence. FAM. § 161.001(b). “Parental rights are ‘far more
precious than any property right,’ and when the State initiates a termination
proceeding, ‘it seeks not merely to infringe that fundamental liberty interest, but to
end it.’” In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) (quoting Santosky v. Kramer,
455 U.S. 745, 758–59 (1982)). We carefully scrutinize termination proceedings, and
we strictly construe involuntary termination statutes in the parents’ favor. Id.7
Father’s Appeal
In his first issue, the father challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that there was a material and substantial
change in the circumstances of the parents or the children. In this same issue, he
also challenges the legal sufficiency of the evidence to support the trial court’s
finding that the father failed to comply with the provisions of a court order that
established the actions necessary for him to obtain the return of the children; he
specifically contends that there was no evidence that a court order or court-ordered
family service plan applied after the 2019 SAPCR order denying any request for
termination.
When the Department seeks termination after a trial court’s prior denial of
termination, the Department is not limited to proceeding under Section 161.004. In
such a situation, the trial court may terminate parental rights (1) under
Section 161.001, which requires clear and convincing evidence of acts or omissions
having occurred since the denial, or (2) under Section 161.004, which requires clear
and convincing evidence of an act or omission under Section 161.001 that occurred
before the denial and evidence of a material and substantial change since the denial.
In re J.P., No. 11-20-00209-CV, 2021 WL 865197, at *2 (Tex. App.—Eastland
Mar. 9, 2021, pet. denied) (mem. op.); In re A.L.H., 515 S.W.3d 60, 89 (Tex. App.—
Houston [14th Dist.] 2017, pet. denied); In re K.G., 350 S.W.3d 338, 352 (Tex.
App.—Fort Worth 2011, pet. denied). Here, the Department sought termination
under both sections.
We will first address Section 161.004. To rely on evidence of conduct that
occurred prior to an earlier order denying termination, the Department must prove
that the circumstances of the child, parent, sole managing conservator, possessory
conservator, or other party affected by the order have “materially and substantially
changed since the date that the order was rendered.” FAM. § 161.004(a)(2). Here,
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the trial court found that the circumstances of the parents and the children had
materially and substantially changed. However, after reviewing all of the evidence
presented, we can find no evidence to show that the circumstances of the parents or
the children had materially and substantially changed since the date of the 2019
SAPCR order. Therefore, we cannot uphold the finding of the trial court under
Section 161.004 and, in considering Section 161.001(b)(1), cannot consider conduct
that occurred prior to the 2019 SAPCR order denying termination. See In re D.N.,
405 S.W.3d 863, 871 (Tex. App.—Amarillo 2013, no pet.).
We are thus left with a finding that the father failed to comply with the
provisions of a court order that specifically established the actions necessary for him
to obtain the return of the children. See FAM. § 161.001(b)(1)(O). To uphold this
finding, we must limit our consideration of the evidence to the relevant timeframe:
after the 2019 SAPCR order denying termination. D.N., 405 S.W.3d at 871. The
Department did not offer any family service plan into evidence, and the testimony
of the permanency case manager alluded to a court-ordered family service plan that
was created “at the beginning of this case” in 2017. We can find no court order in
the record to show that, after it entered the final SAPCR order in 2019, the trial court
ordered the father to participate in services or comply with the terms of a family
service plan. The Department must provide some evidence that the service plan with
which the parent must comply was incorporated into a court order that specifically
established the actions necessary for the return of the child. D.N., 405 S.W.3d at
878; In re C.L., 304 S.W.3d 512, 515–17 (Tex. App.—Waco 2009, no pet.); see FAM.
§ 161.001(b)(1)(O). In this case, the Department failed to present any evidence that
a court order specifically establishing the actions necessary for the father to obtain
the return of the children, such as a court-ordered family service plan, was in effect
after the 2019 final SAPCR order. Because the evidence does not show that such a
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court order existed, it follows that the evidence also does not show that the father
failed to comply with the provisions of a court order.
Accordingly, we conclude that there is no evidence from which the trial court
could have found by clear and convincing evidence that, after the date of the 2019
SAPCR order, the father failed to comply with the provisions of a court order. Thus,
even when viewed in the light most favorable to the finding, a rational trier of fact
could not have formed a firm belief or conviction that a finding under subsection (O)
was true. See J.P.B., 180 S.W.3d at 573.
Because the evidence in this case is insufficient to support the finding made
by the trial court pursuant to Section 161.004 and is also insufficient to support the
finding made by the trial court pursuant to Section 161.001(b)(1)(O), we sustain the
father’s first issue on appeal. We do not address the father’s second issue, in which
he challenges the factual sufficiency of the evidence to show that termination of his
parental rights would be in the children’s best interest, as that issue is not dispositive
of this appeal. See TEX. R. APP. P. 47.1. This court’s ruling does not alter the trial
court’s appointment of the Department as the children’s managing conservator. See
In re J.A.J., 243 S.W.3d 611, 615–17 (Tex. 2007).
Mother’s Appeal
In her sole issue on appeal, the mother contends that, despite the Rule 11
agreement, the evidence was insufficient to show that termination of her parental
rights was in the best interest of the children. The mother asserts in her appellate
brief that “there was an agreement of some sort that [her] rights were not terminated
under other grounds besides ‘O’” but that “the evidence of best interest fell by the
wayside.” We cannot agree with the mother’s contention.
Pursuant to Rule 11 of the Texas Rules of Civil Procedure, an agreement
entered on the record in open court is enforceable. The agreement announced
in open court in this case was an agreement relating to the termination of the
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mother’s parental rights. The mother’s attorney acknowledged that the parties had
agreed “that the parental rights of [the mother] will be terminated on O grounds only
and no additional grounds.” This statement, along with a statement that the children
would be adopted, indicated that the parties had agreed to the termination of the
mother’s parental rights. When the trial court announced that the parties’ Rule 11
agreement provided for the mother’s parental rights to be terminated, the mother’s
attorney agreed that that was indeed the parties’ agreement.
Termination necessitates the consideration of a child’s best interest. In
addition to the necessary implication of the Rule 11 agreement, the permanency case
manager testified that it would be in the children’s best interest for the mother’s
parental rights to be terminated. The mother’s father, who maintained contact with
the children while they were in foster care, also testified that it would be in the
children’s best interest to terminate the parental rights of all of the parents. The
children’s attorney and guardian ad litem, when expressing his recommendation to
the trial court, thanked the mother “for recognizing at this point what is best for her
children.” Furthermore, the evidence showed that, while in the care of their mother,
the children lived in “horrible conditions” and were covered with fleas and lice. And,
importantly, the evidence showed that the mother continued to use
methamphetamine and engage in criminal activity.
The trial court, as the trier of fact, is the sole judge of the credibility of the
witnesses. A.B., 437 S.W.3d at 503. Giving due deference to the trial court, we hold
that, based on the evidence presented at trial and the Holley factors, the trial court
could reasonably have formed a firm belief or conviction that termination of the
mother’s parental rights would be in the children’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
11
abilities of those involved; the plans for the children by the Department; the acts
previously committed by the mother that endangered her children; the mother’s
continued drug use; and the instability of the mother’s situation, we hold that the
evidence is legally and factually sufficient to support the trial court’s finding that
termination of the mother’s parental rights is in the best interest of the children. See
id. Based on the Rule 11 agreement, the evidence presented at trial, and the
deference that we must afford the trial court’s finding as to the children’s best
interest, see C.H., 89 S.W.3d at 27, we cannot hold in this case that the finding as to
best interest is not supported by clear and convincing evidence. Accordingly, we
overrule the mother’s sole issue on appeal.
This Court’s Ruling
We reverse the trial court’s order insofar as it terminated the parental rights
of Appellant father (D.W.) to his children, and we affirm the order of the trial court
in all other respects. We remand this cause to the trial court for further proceedings
with respect to Appellant father (D.W.) and his biological children (C.W.2 and
F.S.W.). Any proceeding on remand must be commenced within 180 days of this
court’s mandate. TEX. R. APP. P. 28.4(c).
JOHN M. BAILEY
CHIEF JUSTICE
January 27, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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