in the Interest of Z.H. and Z.H., Children ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00096-CV
IN THE INTEREST OF Z.H. AND Z.H., CHILDREN
On Appeal from the 307th District Court
Gregg County, Texas
Trial Court No. 2020-1156-DR
Before Morriss, C.J., Stevens and Carter,* JJ.
Memorandum Opinion by Justice Stevens
________________________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
MEMORANDUM OPINION
The Department of Family and Protective Services (the Department) filed a petition to
terminate Father’s parental rights to his sons, Zach and Zeke.1 After a bench trial, the trial court
terminated Father’s parental rights on finding that (1) he knowingly placed or allowed the
children to remain in conditions or surroundings that endangered their physical or emotional
well-being, (2) he engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered their physical or emotional well-being, (3) he failed to
comply with the provisions of a court order that specifically established, under Section
161.001(b)(1)(O), the actions necessary for him to obtain the children’s return, (4) he used a
controlled substance in a manner that endangered the health or safety of the children, as
described in Section 161.001(b)(1)(P) of the Texas Family Code, and (5) termination of his
parental rights was in the children’s best interests.2 See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D), (E), (O), (P), (b)(2) (Supp.).
In his sole point of error on appeal, Father challenges the trial court’s best interests
finding and argues that it was not supported by factually sufficient evidence. Because we
conclude that the evidence was factually sufficient to support the finding that termination of
Father’s parental rights was in Zach’s and Zeke’s best interests, we affirm the trial court’s
judgment.
1
We use pseudonyms to protect the identity of the children. See TEX. R. APP. P. 9.8.
2
Mother’s parental rights were also terminated, but she is not a party to this appeal.
2
I. Standard of Review
“The natural right existing between parents and their children is of constitutional
dimensions.” In re L.E.S., 471 S.W.3d 915, 919 (Tex. App.—Texarkana 2015, no pet.) (quoting
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to
make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel
v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates
fundamental interests, a higher standard of proof—clear and convincing evidence—is required at
trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). This Court is “required to
‘engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to
support the termination of parental rights.’” Id. at 919–20 (quoting In re A.B., 437 S.W.3d at
500). “[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id. at 920
(quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting
Holick, 685 S.W.2d at 20)).
“In order to terminate parental rights, the trial court must find, by clear and convincing
evidence, that the parent has engaged in at least one statutory ground for termination and that
termination is in the child’s best interest.” Id. (citing In re E.N.C., 384 S.W.3d 796, 798 (Tex.
2012)). “‘Clear and convincing evidence’ is that ‘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.’” Id. (quoting TEX. FAM. CODE ANN. § 101.007); see In re J.O.A., 283 S.W.3d 336,
344 (Tex. 2009). “This standard of proof necessarily affects our review of the evidence.” Id.3
“There is a strong presumption that keeping a child with a parent is in the child’s best
interest.” In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus
Christi Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (per curiam)). “Termination ‘can never be justified without the most solid and substantial
reasons.’” In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting
Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).
In determining the best interests of the child, courts consider the following Holley factors:
(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, (6) the plans for the child by these
individuals, (7) the stability of the home, (8) the acts or omissions of the parent
that may indicate the existing parent-child relationship is not a proper one, and
(9) any excuse for the acts or omissions of the parent.
Id. at 818–19 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see In re E.N.C.,
384 S.W.3d 796, 807 (Tex. 2012); see also TEX. FAM. CODE ANN. § 263.307(b). “There is no
requirement that the party seeking termination prove all nine factors.” In re N.L.D., 412 S.W.3d
at 819 (citing In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Also, we may consider evidence used
to support the grounds for termination of parental rights in the best-interest analysis. In re C.H.,
89 S.W.3d 17, 28 (Tex. 2002).
“In our review of factual sufficiency, we give due consideration to evidence the trial
court could have reasonably found to be clear and convincing.” In re L.E.S., 471 S.W.3d at 920
(citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam)). “We consider only that
evidence the fact-finder reasonably could have found to be clear and convincing and determine
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‘whether the evidence is such that a fact[-]finder could reasonably form a firm belief or
conviction about the truth of the . . . allegations.’” Id. (quoting In re H.R.M., 209 S.W.3d at 109
(quoting In re C.H., 89 S.W.3d at 25) (citing In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex.
2002))). “If, in light of the entire record, the disputed evidence that a reasonable fact[-]finder
could not have credited in favor of the finding is so significant that a fact[-]finder could not
reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.”
Id. (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). To make this determination, we
undertake “an exacting review of the entire record with a healthy regard for the constitutional
interests at stake.” Id. (quoting In re A.B., 437 S.W.3d at 503 (quoting In re C.H., 89 S.W.3d at
26)).
“Despite the profound constitutional interests at stake in a proceeding to terminate
parental rights, ‘the rights of natural parents are not absolute; protection of the child is
paramount.’” Id. (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T.,
872 S.W.2d 189, 195 (Tex. 1994)) (citing In re M.S., 115 S.W.3d 534, 547 (Tex. 2003))). “A
child’s emotional and physical interests must not be sacrificed merely to preserve parental
rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.)
(citing In re C.H., 89 S.W.3d at 26)).
II. The Evidence at Trial
At the time of their removal from Mother and Father, Zach was three and Zeke was one.
Emily Pillows, the Department’s conservatorship worker, testified that the Department received
an intake on June 17, 2020, alleging that Zach was living in an unsuitable camper trailer where
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there was possible drug use, that Zach was suffering from physical neglect, and that Father was
allegedly locking Mother and Zeke outside of the trailer without food or drink. When Pillows
reached out to Mother, she said that Father had kicked her out of the trailer and that she and Zeke
were staying with people she did not know who had picked her and the baby up from the side of
the road. When Pillows spoke to Father, he claimed that Mother had significant mental health
issues, that he did not kick her out, and that she had left with the baby.
When asked about the intake, Father admitted that he had used drugs in the past, denied
using drugs at that time, and said Mother used methamphetamine. According to Pillows, Mother
said that she had not used drugs but that Father had used methamphetamine in front of her and
the children. Mother claimed that, if she tested positive, it would be because of Father’s actions.
Even so, Mother clarified that she made no attempts to remove the children from the
environment in which Father was using drugs. Patty Christian, an investigator with the
Department, spoke with Mother, who said Father was using methamphetamine daily for the past
two months and had done so in the children’s presence. John Arthur Tarver, a laboratory
manager for Quest Diagnostics, testified that, on June 19, 2020, Mother tested positive for
methamphetamine and amphetamine. Pillows testified that Father initially refused to comply
with her request to take a drug test, but, according to Tarver, Father also tested positive for
methamphetamine and amphetamine on July 6 and August 26, 2020.
As for the home environment, Pillows testified that “[t]he conditions were very poor.”
Pillows continued, “The inside of the camper . . . was extremely small. There were . . . piles of
clothes all over the place[, and] . . . . there was an odor in the home.” Pillows also stated that
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there were no beds and that boxes of miscellaneous items were strewn all over the trailer.
Pillows said that there was barely enough room in the living area for her to stand with Father,
that the camper trailer was not big enough for four people to live in, and that it was not suitable
for Zach to live in. Pillows added that, although the camper trailer had electricity, there was
“very little food.”
As for Zach, Pillows said that he was filthy, had dirt all over his face and caked
underneath his fingernails, wore dirty clothes, and had “extremely greasy and oily” hair. Pillows
could tell that the child had not been bathed in a while and had been neglected. Latrice Russell,
a Department caseworker, testified that both Zach and Zeke were suffering from delayed
development. According to Russell, Zach was not speaking, was having trouble eating solid
foods, and was diagnosed with autism, and Zeke was not crawling. Michael D. Bell, Mother’s
stepfather and the children’s placement, testified that, when the children arrived, Zach had bed
bugs in his hair, was disoriented, and kept screaming and licking his knee and that Zeke slept all
the time and was an inactive baby. Russell explained the Department’s efforts to assist the
children with their developmental delays.
Russell, who became involved in the case in October or November 2020, spoke about
Father’s efforts to obtain the children’s return. She testified that Father was aware of the family
service plan, which the trial court incorporated into an order on August 26, 2020. Under the
plan, Father was to maintain stable employment and housing, attend and complete parenting
classes, attend substance abuse treatment, complete an assessment with East Texas Council on
Alcoholism & Drug Abuse (ETCADA), submit to random drug screenings, complete a
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psychological evaluation, attend individual counseling, complete domestic violence classes, and
refrain from criminal activity. According to Russell, Father did not complete any portion of his
court-ordered family service plan.
Russell testified that Father failed to submit to her requests for drug testing on four
separate occasions and, as a result, the tests were presumed positive. Father was also
incarcerated for “breaking into people’s houses” in December 2020 for a period of six months,
after which Russell contacted Father again to discuss resuming services under the family service
plan. Although Father was granted visitation, Russell testified that he missed several visits.
Russell said that Father’s only face-to-face visit with his children was not appropriate, that the
Department found a pocketknife in the children’s diaper bag, and that Father became upset and
left the visit upset. Father did not have transportation and never provided any proof of
employment. Russell said that neither Mother, who was unemployed and living with drug users,
nor Father were able to provide a safe and stable living environment or financially provide for
the children, and Christian testified that the children’s proximity to serious drug use endangered
them physically and emotionally. Russell also testified that Father had lost care of his other
children to the Department, including one child that was removed for drug-related reasons. As a
result, Russell believed that it was in the children’s best interests for Mother’s and Father’s
parental rights to be terminated.
Russell testified that the children were placed with Bell and his wife, the children’s
maternal grandmother, who wished to adopt them. Both Russell and Vijay Kuppurajan, the
Court Appointed Special Advocate and resident physician at Christus Good Shepherd, testified
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that they witnessed much improvement in the boys since their placement and that Bell’s home
was a stable environment where their special needs were addressed. Russell said that Zach was
happy, that the foster parents worked with him to develop communication skills though he was
still nonverbal, and that it would be disruptive to remove him from Bell’s home. She also said
that Zeke was thriving, received services from Early Childhood Intervention, and was now
walking. Bell, who had cared for the children for more than one year, testified that he worked
for Pepsi Cola, that his wife worked for Brookshire’s grocery, and that the children enjoyed
being in daycare during work hours. Bell said that he could provide for the children and wanted
to adopt them.
Despite being properly served, neither Mother nor Father appeared at trial, and their plans
for the children were unknown. As a result, after hearing the evidence, the trial court found
grounds to terminate both parents’ rights to Zach and Zeke and determined that it was in the
children’s best interests.
III. Analysis of the Holley Factors
Father argues that the evidence was factually insufficient to find that terminating his
parental rights was in Zach’s and Zeke’s best interests. After weighing the Holley factors, we
disagree.
As for the first Holley factor, Zach and Zeke were too young to express their desires.
Even so, “[w]hen children are too young to express their desires, the fact[-]finder may consider
that the children have bonded with the foster family, are well-cared for by them, and have spent
minimal time with a parent.” In re R.W., 627 S.W.3d 501, 517 (Tex. App.—Texarkana 2021, no
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pet.) (citing In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.)).
Zach was three at the time of removal, but Zeke, who was one, had spent minimal time with
Father, was just learning to speak, and was using words like “mom” and “dad” in Bell’s home.
The evidence showed that Zach and Zeke were bonded to their maternal grandmother and Bell,
were thriving in their placement, and were loved and cared for. Because Father did not appear at
trial, there was no evidence that the children were still bonded to him or that he wished for the
children to be returned to him. As a result, we find that the first Holley factor weighs in favor of
terminating Father’s parental rights.
Considering the second factor, both Zach and Zeke were developmentally delayed. Zach
was diagnosed with autism and was nonverbal, and Zeke had not learned to crawl in a timely
manner. Bell testified that Zach screamed and had nightmares shortly after his placement. Both
children were receiving treatments and therapies to address their conditions. Even though Zach’s
and Zeke’s emotional and physical needs were great, Father had no stable job or transportation
and had not provided proof of a stable residence. “A parent who lacks stability, income, and a
home is unable to provide for a child’s emotional and physical needs.” In re C.A.J., 459 S.W.3d
175, 183 (Tex. App.—Texarkana 2015, no pet.) (quoting In re J.T.G., No. 14-10-00972-CV,
2012 WL 171012, at *17 (Tex. App.—Houston [14th Dist.] Jan. 19, 2012, pet. denied) (mem.
op.)). We find that the second Holley factor weighs in favor of termination of parental rights.
In evaluating the third through eighth Holley factors, we recognize that “[e]vidence of
past misconduct or neglect can be used to measure a parent’s future conduct.” Id. (quoting In re
I.R.K.N., No. 10-13-00455-CV, 2014 WL 2069281, at *7 (Tex. App.—Waco May 15, 2004, pet.
10
denied) (mem. op.)); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ)
(“Past is often prologue.”). “A parent’s inability to provide adequate care for h[is] child, lack of
parenting skills, and poor judgment may be considered when looking at the child[ren]’s best
interests.” In re N.L.D., 412 S.W.3d at 819 (citing In re C.A.J., 122 S.W.3d 888, 893 (Tex.
App.—Fort Worth 2003, no pet.)). “[P]arental drug abuse is also a factor to be considered in
determining a child’s best interests.” Id. (citing In re M.R., 243 S.W.3d 807, 820 (Tex. App.—
Fort Worth 2007, no pet.)).
The record showed that Father used methamphetamine and tested positive for drugs
during the pendency of the case. According to Mother, Father used methamphetamine in the
children’s presence daily. Father had lost custody of all his other children in favor of the
Department, including a child who was removed for drug-related reasons. Christian explained
how Father’s drug use endangered the children. Father’s home was dirty and overcrowded and
lacked adequate space for the children. Zach, who was in Father’s care, was filthy, had not been
bathed, had bed bugs in his hair, and was described by Pillows as neglected. The evidence also
showed that Father allowed Zeke to leave the home and be picked up by strangers, along with
Mother, who Father said used methamphetamine. Father was jailed during the pendency of the
case on charges of burglary. Father’s history of drug abuse and poor decisions established that
he had been a danger to Zack and Zeke.
Also, Father did not complete any portion of his family service plan, including parenting
classes and substance abuse treatment, and failed to avail himself of individual counseling.
Because Father tested positive for drugs twice during the pendency of the case and refused four
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other requests to take a drug test, nothing showed that Father had conquered his drug addiction,
which was necessary to becoming a capable parent. Father’s drug use and other criminal activity
during the case, anger during an in-person visit with the children, placement of a pocketknife in
the children’s diaper bag, and failure to attend virtual and telephone visits indicated that the
existing parent-child relationship with Zach and Zeke was not a proper one. By trial, nothing
showed that Father had transportation, income, or a stable home. While there was no evidence
of Father’s plan for the children, the Department’s plan was for the children to be adopted by
their material grandmother and Bell, who had loved, cared for, and provided for the children and
their special needs for over one year. We find that the third through eighth Holley factors weigh
in favor of terminating Father’s parental rights.
As for the last Holley factor, Father did not appear for trial despite being properly served.
Even assuming Father had transportation issues or would use being jailed as an excuse for failing
to complete some portions of the family service plan, Father had no excuse for his drug use or
failure to attempt any portion of the service plan when he was released from jail.
Considering the Holley factors and viewing all the evidence, we conclude that the trial
court could have reasonably formed a firm belief or conviction, by clear and convincing
evidence, that termination of Father’s parental rights was in Zach’s and Zeke’s best interests.
See TEX. FAM. CODE ANN. § 161.001(b)(2) (Supp.). As a result, we find the evidence factually
sufficient to support the trial court’s best interests finding and overrule Father’s sole point of
error.
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IV. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: January 31, 2022
Date Decided: February 4, 2022
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