in the Interest of K.R. and K.R., Children ( 2022 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-21-00205-CV
IN THE INTEREST OF K.R. AND K.R., CHILDREN
On Appeal from the County Court at Law No. 1
Randall County, Texas
Trial Court No. 78,505-L1, Honorable James W. Anderson, Presiding
February 3, 2022
MEMORANDUM OPINION
Before PIRTLE and PARKER and DOSS, JJ.
In this accelerated appeal, Mother seeks reversal of the trial court’s judgment
terminating her parental rights to her children, K.A.R. and K.L.R.1 By her appeal, Mother
raises two issues. In her first issue, Mother challenges the sufficiency of the evidence to
support the trial court’s best interest finding. In her second issue, Mother challenges the
1 To protect the privacy of the parties involved, we will refer to the appellant as “Mother,” and to the
children by initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). Father’s parental rights
were also terminated in this proceeding. Father does not appeal.
appointment of the Department as permanent managing conservator. We affirm the
judgment of the trial court.
Background
In December of 2019, the Department received an intake involving Mother, Father,
and seven-month-old K.A.R. According to the Department’s investigation, Mother and
Father were involved in an automobile accident and fled the accident scene as law
enforcement was arriving. When they were stopped by law enforcement, Mother was
driving and K.A.R. was seated in a car seat. Both Mother and Father were arrested on
outstanding warrants, and Mother was charged with evading arrest or detention with a
motor vehicle and child endangerment. K.A.R. was placed with his maternal
grandmother. During the Department’s investigation, Mother admitted that she was a
daily marijuana user. The Department implemented a safety plan with Mother having
supervised visits by the maternal grandmother. In February of 2020, the Department
referred the family to the Family Based Safety Service (FBSS) division and offered
counseling, parenting classes, substance abuse evaluation and testing, and mental
health services.
While the FBSS case was open, the Department received an intake involving
negligent supervision of K.A.R. and allegations of illegal drug use by the maternal
grandmother. The Department requested that the maternal grandmother submit to drug
testing and she was positive for methamphetamine. K.A.R. also tested positive for
methamphetamine. K.A.R. was removed from the maternal grandmother’s care and
placed with a maternal great-aunt and uncle.
2
In the spring of 2020, Mother tested positive multiple times for marijuana and
admitted to her FBSS worker that she had relapsed. Mother made three appointments
to complete an inpatient drug treatment program, but she did not follow through with these
appointments.
In July of 2020, K.L.R. was born. When K.L.R. was one month old, the Department
discovered that Mother had violated the safety plan by allowing the maternal grandmother
access to K.L.R. Since Mother had not made any progress on her FBSS services, the
Department filed its original petition for protection of a child on August 21, 2020.2 After
an adversary hearing, the court granted a non-emergency removal and named the
Department as managing conservator of both children. K.L.R. was placed with a maternal
great-aunt and K.A.R.’s placement was changed to the home of his maternal great-
grandmother.
The Department developed a family service plan for Mother. The service plan set
out several tasks and services for Mother to complete before reunification with K.A.R. and
K.L.R. could occur. These tasks and services included the following: attend parenting
classes; obtain and maintain stable housing that is appropriate and safe for the children;
locate and maintain employment sufficient for her family’s needs; attend visitation;
maintain contact with the caseworker; maintain a drug-free lifestyle; submit to random
drug screens; participate in a substance abuse assessment and follow recommendations;
attend individual counseling; participate in and complete rational behavior therapy (RBT);
2 On October 30, 2020, the Department filed its second amended petition for protection,
conservatorship, and termination of parental rights.
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participate in and complete a psycho-social evaluation; and attend a Women Against
Violence program (WAV).
The trial court conducted a bench trial through Zoom videoconferencing on
September 3, 2021.
At trial, the Department caseworker testified that Mother had made minimal
progress on her plan of service. Mother was unable to maintain stable housing. She
lived with Father periodically, and then she moved in with a person who could not pass a
Department background check. She worked as a waitress for two weeks before she was
terminated from her employment. Mother did not complete her mental health services,
individual counseling, or RBT. Mother attended some sessions of the WAV program, but
she did not complete the program. Mother submitted to random drug testing, but she did
not maintain a drug-free lifestyle. She completed a substance abuse assessment, but
she did not complete the inpatient rehabilitation recommended. In November of 2020,
Mother admitted that she had been using methamphetamine, marijuana, and alcohol. In
December of 2020, the caseworker drove Mother to an inpatient substance abuse
treatment center in Plainview. Mother was admitted for a minimum thirty-day stay, and
she left after two days. In late January of 2021, the caseworker accompanied Mother a
second time for inpatient substance abuse treatment, and this time Mother stayed nine
days before leaving the facility.
The Department presented evidence that Mother pled guilty on November 30,
2020, to a third-degree felony of evading arrest and detention with a vehicle, and a state
jail felony of abandoning and endangering a child. Mother was placed on deferred
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adjudication community supervision for four years for each offense. As a part of her
community supervision probation, Mother was to abstain from the use of illegal
substances and refrain from committing another criminal offense. While on probation,
Mother admitted to her probation officer that she had used methamphetamine.
Subsequently, a supplemental order amending the conditions of her probation was
signed, and Mother was ordered to a substance abuse felony punishment facility (SAFPF)
for nine months beginning in June of 2021.
At the time of trial, Mother was incarcerated in SAFPF with an expected release
date of March 23, 2022. Mother had been incarcerated in the Randall County Jail for
violations of her probation for two and a half months before she was transferred to SAFPF.
Mother testified that she has recently obtained her GED. She is working on her
anger management issues, attending chemical dependency groups, and will begin
parenting classes soon. She is learning how to live without drugs and how to manage
crisis situations.
Mother plans to work her Department services after she is released. She
acknowledged that she is currently unable to take care of the children. Mother wants her
children to remain with her family and she thinks that they are in good placements. Mother
admitted that she did not take the case seriously enough in the beginning and her drug
use “caused [her] misjudgment and misleading direction of life.” Mother has not provided
any financial support for K.A.R. or K.L.R. since they have been in care.
According to Mother, she was sixteen years old when she started using marijuana.
She used methamphetamine in 2018, and “occasionally” used methamphetamine in
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2019. She testified she used methamphetamine after K.A.R. was born in 2019, and
before and after K.L.R. was born. She admitted to using marijuana during her pregnancy
with K.L.R.
K.A.R. is twenty-seven months old and placed with his maternal great-
grandparents. K.L.R. is thirteen months old and she is placed with her maternal great-
aunt. The children are well taken care of and see each other several times a month.
These placements have cared for these children the majority of their lives and are the
only family these children have known. Each of the placements has expressed an interest
in adopting the children if Mother’s parental rights are terminated. The caseworker
testified that termination was in the best interest of K.A.R. and K.L.R. because Mother
has not demonstrated that she can provide for the emotional and physical needs of the
children now and in the future. Adoption of the children by their respective placements
will provide permanence and further stability for the children.
The trial court terminated Mother’s parental rights to K.A.R. and K.L.R. on the
grounds of endangering conditions, endangerment, and failure to comply with a court
order that established actions necessary to retain custody of the children. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(D), (E), (O).3 The trial court also found that termination was in
the best interest of K.A.R. and K.L.R. See § 161.001(b)(2). The Department was
appointed the permanent managing conservator of both children.
3 Further references to provisions of the Texas Family Code will be by reference to “section ___”
or “§ ___.”
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Applicable Law
A parent’s right to the “companionship, care, custody, and management” of his or
her child is a constitutional interest “far more precious than any property right.” Santosky
v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of the
parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural
parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to
accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)
(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may
forfeit his or her parental rights by his or her acts or omissions, the primary focus of a
termination suit is protection of the child’s best interests. See id.In a case to terminate parental rights under section 161.001 of the Family Code,
the petitioner must establish, by clear and convincing evidence, that (1) the parent
committed one or more of the enumerated acts or omissions justifying termination, and
(2) termination is in the best interest of the child. § 161.001(b). Clear and convincing
evidence is “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.”
§ 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both elements must be
established, and termination may not be based solely on the best interest of the child as
determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied).
“Only one predicate finding under section 161.001[(b)](1) is necessary to support a
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judgment of termination when there is also a finding that termination is in the child’s best
interest.” In re A.V., 113 S.W.3d at 362. We will affirm the termination order if the
evidence is both legally and factually sufficient to support any alleged statutory ground
the trial court relied upon in terminating the parental rights if the evidence also establishes
that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d at 894-95.
The clear and convincing evidence standard does not mean the evidence must
negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,
902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall
that the trier of fact has the authority to weigh the evidence, draw reasonable inferences
therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the
right to resolve credibility issues and conflicts within the evidence and may freely choose
to believe all, part, or none of the testimony espoused by any witness. Id. Where
conflicting evidence is present, the factfinder’s determination on such matters is generally
regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no
writ).
The appellate court cannot weigh witness credibility issues that depend on
demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,
the appellate court must defer to the factfinder’s determinations, if those determinations
are not themselves unreasonable. Id.8
Best Interest
In her first issue, Mother challenges the factual and legal sufficiency of the
evidence to support the best interest finding made under section 161.001(b)(2). She does
not contest the predicate grounds for termination under section 161.001(b)(1).
When reviewing the legal sufficiency of the evidence in a termination case, the
appellate court should look at all the evidence in the light most favorable to the trial court’s
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.F.C., 96 S.W.3d at 266. To give appropriate
deference to the factfinder’s conclusions, we must assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We
disregard all evidence that a reasonable factfinder could have disbelieved or found to
have been not credible, but we do not disregard undisputed facts. Id. Even evidence that
does more than raise surmise or suspicion is not sufficient unless that evidence can
produce a firm belief or conviction that the allegation is true. In re K.M.L., 443 S.W.3d
101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we determine that
no reasonable factfinder could have formed a firm belief or conviction that the matter that
must be proven was true, then the evidence is legally insufficient, and we must reverse.
Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, we must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96
S.W.3d at 266. We must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.
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Id. We must also consider whether disputed evidence is such that a reasonable factfinder
could not have resolved the disputed evidence in favor of its finding. Id. If, considering
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.
A determination of best interest necessitates a focus on the child, not the parent.
In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts
examine the entire record to decide what is in the best interest of the child. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child’s
best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006).
In assessing whether termination is in a child’s best interest, the courts are guided
by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976). These factors 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 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 proper, and (9) any excuse
for the acts or omissions of the parent. Id. “[T]he State need not prove all of the factors
as a condition precedent to parental termination, ‘particularly if the evidence were
undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,
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95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory
grounds for termination may also constitute evidence illustrating that termination is in the
child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis may
consider circumstantial evidence, subjective factors, and the totality of the evidence as
well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,
no pet.). We must also bear in mind that 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. See In re K.C., 219 S.W.3d 924, 931 (Tex.
App.—Dallas 2007, no pet.).
The trial court was allowed to consider evidence in support of the predicate
grounds in making the best interest determination and Mother does not challenge those
findings on appeal. That evidence established that Mother has a history of substance
abuse since 2016. The Department became involved with Mother and K.A.R. in
December of 2019, when Mother was involved in a hit and run accident while K.A.R. was
a passenger in her vehicle. At that time, Mother admitted to daily marijuana use. The
Department referred Mother for FBSS and offered her services to address her substance
abuse. Despite the Department’s assistance, Mother continued to use marijuana while
she was pregnant with K.L.R. After K.L.R.’s birth in July of 2020, Mother’s substance
abuse progressed to her use of methamphetamine and the Department was granted
temporary managing conservatorship of K.A.R. and K.L.R. After the removal of the
children from her care, the Department developed a family plan of service and Mother’s
participation in services was court ordered. The trial court heard evidence that Mother
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completed minimal services required in her service plan. In November of 2020, Mother
was placed on community supervision probation after she pled guilty to a felony offense
of evading arrest and detention and a state jail offense of abandoning and endangering
a child. Mother’s continued use of methamphetamine resulted in a modification of her
probation and her incarceration in a SAFPF for nine months. The trial court’s
unchallenged predicate grounds are probative in the best interest determination. In re
E.A.F., 424 S.W.3d 742, 750 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (citing,
inter alia, In re C.H., 89 S.W.3d at 28). A parent’s drug use demonstrates an inability to
provide a stable environment for the children and an inability to provide for the children’s
emotional and physical needs. In re E.M., 494 S.W.3d 209, 222-23 (Tex. App.—Waco
2015, pet. denied). The unchallenged statutory grounds for termination are significant in
our review of the best interest finding.
Stability and permanence are paramount in the upbringing of children. In re J.D.,
436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may
compare the parent’s and the Department’s plans for the children and determine whether
the plans and expectations of each party are realistic or weak and ill-defined. Id. at 119-
20. After the children were removed from her care, Mother struggled to find housing and
she could not maintain employment. The Department attempted to connect Mother with
substance abuse treatment for more than eighteen months. At the time of trial, Mother
testified that she was presently unable to care for K.A.R. and K.L.R. due to her
incarceration, and she wanted the children to remain in their current placements. She
acknowledged that she would not be discharged from the SAFPF program for another six
months and, after her release, she would be required to go to a halfway house and
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complete a drug court program. In contrast, the Department’s plan for K.A.R. and K.L.R.
was permanence. The trial court heard testimony from the caseworker that twenty-eight-
month-old K.A.R., and thirteen-month-old K.L.R., are doing well in their relative
placements. The children have spent a majority of their lives in the care of these relative
placements, and the placements wish to adopt the children. Mother has not been a
caretaker for the children since K.A.R. was eight months old and K.L.R. was one month
old. The children’s placements have made arrangements for the children to visit each
other several times a month. When children are too young to express their desires, the
factfinder may consider whether the children have bonded with the foster family, are well-
cared for by them, and have spent minimal time with a parent. In re S.R., 452 S.W.3d
351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Further, the Department’s
plan for K.A.R.’s and K.L.R.’s adoption provides permanence and stability for them and
weighs heavily in favor of the trial court’s conclusion that termination of Mother’s parental
rights is in the best interest of both children.
We conclude the evidence is legally and factually sufficient to establish a firm
conviction in the mind of the trial court that termination of Mother’s parental rights is in the
best interest of K.A.R. and K.L.R. We overrule Mother’s first issue challenging the best
interest determination.
Appointment of Department as Managing Conservator
In her second issue, Mother argues the Department did not present evidence that
the best interest of the children would be served by termination rather than naming the
mother as a possessory conservator of the children.
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We review a conservatorship determination for an abuse of discretion and will
reverse only if the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611,
616 (Tex. 2007). Texas Family Code section 161.207(a) provides in part that if the court
terminates the parent-child relationship with respect to both parents or to the only living
parent, the court shall appoint “a suitable, competent adult,” the Department, or a licensed
child-placing agency as managing conservator of the child. § 161.207(a).
Here, Mother does not challenge any of the statutory grounds for termination and,
as a result, has conceded the evidence was sufficient to support the predicate grounds.
In re Z.G., No. 07-18-00339-CV, 2019 Tex. App. LEXIS 40, at *10 (Tex. App.—Amarillo
Jan. 4, 2019, no pet.) (mem. op.). In our consideration of Mother’s first issue, we have
concluded the evidence was sufficient to support the trial court’s findings under section
161.001(b)(2). There was no evidence presented to establish appointment of another
suitable, competent adult as conservator of the children. Accordingly, Mother’s argument
against the trial court’s appointment of the Department as the permanent managing
conservator is without merit. In re N.T., 474 S.W.3d 465, 481 (Tex. App.—Dallas 2015,
no pet.). We overrule issue two.
Conclusion
Having overruled both of Mother’s issues, we affirm the judgment of the trial court
terminating Mother’s parental rights.
Judy C. Parker
Justice
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