in the Interest of M.W., a Child ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00146-CV
___________________________
IN THE INTEREST OF M.W., A CHILD
On Appeal from the 325th District Court
Tarrant County, Texas
Trial Court No. 325-683388-20
Before Birdwell, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
Appellant B.B. (Mother) appeals from the trial court’s order terminating her
parental rights to her son, M.W. (Mitchell).1 She challenges the sufficiency of the
evidence to support the child-endangerment grounds for termination. See Tex. Fam.
Code Ann. § 161.001(b)(1)(D), (E). We conclude that the evidence was sufficient to
support the fact-finder’s determination that Mother engaged in endangering conduct
and affirm the termination order on that basis.
I. FACTS LEADING TO TERMINATION
On May 7, 2020, Mother was flying to Chicago from California when, during a
lay-over in the Dallas–Fort Worth Airport, she went into early labor. She gave birth
to Mitchell at a local hospital and she tested positive for PCP and amphetamines.
Mitchell, who was born weighing three pounds and six ounces, had to be put on a
respirator and was placed in the neonatal intensive-care unit. Mitchell also tested
positive for PCP and amphetamines, and Mother admitted that she had used
controlled substances—marijuana, methamphetamines, and PCP—while pregnant
with Mitchell. The hospital contacted the Department of Family and Protective
Services (the Department) and reported possible “neglectful supervision” of Mitchell.
When the Department’s response investigator, Cristian Alfaro, talked to
Mother on the night of May 7, Mother stated that she had a long history of drug
1
We use aliases to refer to Mother, the child, and the child’s alleged fathers. See
Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b).
2
abuse, involving not only cocaine but also marijuana, PCP, and methamphetamines.
She told Alfaro that she had used marijuana, methamphetamines, and PCP during her
pregnancy to feel better while she had been sick with COVID. She knew she should
not have been using such drugs during pregnancy but explained that “addiction is
hard to beat.” She told Alfaro that she was travelling from California, where she had
a house and things were “good,” to Chicago to join a “program” that would help her
with her addiction. Mother stated that Mitchell was her only child, and she refused to
give any information about relatives that could take Mitchell. Mother told Alfaro that
Mitchell’s father was Mitchell Cane with no further identifying information.2 Mother
informed Alfaro that she had been diagnosed with bipolar disorder. Alfaro confirmed
that Mother and Mitchell had tested positive for PCP and amphetamines when
Mitchell was born.
The Department’s investigator, Roxanne Wigzell, spoke to Mother on May 18.
Mother denied knowing why she had tested positive for PCP, speculating that her
roommate in California had tried to kill Mother by drugging her. She stated she was
going to Chicago to go to drug rehabilitation because she “had been around a lot of
addicts recently” and “was starting to get cravings.” Mother denied that her drug use
had caused her to go into early labor, pointing instead to rough sex she had had with
2
Mother later denied that she had told Alfaro that Cane was Mitchell’s father.
3
Cane the night before she left California. As with Alfaro, Mother would not give
Wigzell any information about Cane other than his age—“between 50 and 60.”
Wigzell discovered that Mother had other children: “[T]here was a baby who
had been removed in California and then - - like in the past year, and that there were
two older children who had been adopted in - - somewhere around in Indiana.”
When Wigzell met with Mother on May 29, Mother admitted that she had other
children and that she still had contact with her children who had been adopted in
Indiana; however, she would not give Wigzell any information on those two children.
Mother stated that she believed all the hospital tests, including her drug tests, were
false positives based on something the hospital had given her. She stated that she had
been diagnosed with depression but was not taking medication for it, and that she was
seeing a psychiatrist. Wigzell described Mother as being evasive when asked questions
and as a “scattered and disorganized” thinker. In fact, Mother asked Wigzell if she
was working with California in a conspiracy to take Mitchell. When Wigzell asked
Mother to take a hair-follicle drug test, she became upset and yelled that she was an
addict and did not know what she would test positive for. Wigzell noted that Mother
did not have a stable living environment.
On June 8, the Department filed a suit affecting the parent–child relationship
(SAPCR), seeking to be named Mitchell’s managing conservator and, barring
reunification with Mother, the termination of her parental rights. Among other
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grounds to support the termination request, the Department alleged child-
endangerment grounds:
1. Mother “knowingly placed or knowingly allowed [Mitchell] to remain in
conditions or surroundings which endanger the physical or emotional well-
being of [Mitchell]” or
2. Mother “engaged in conduct or knowingly placed [Mitchell] with persons
who engaged in conduct which endangers the physical or emotional well-being
of [Mitchell].”
See id. In an emergency removal order, the trial court named the Department as
Mitchell’s temporary sole managing conservator. In a later family service plan, the
trial court ordered Mother to complete several services: alcohol and drug assessments,
parenting classes, individual counseling, a psychological evaluation, and all requested
alcohol and drug screenings. She was further instructed to obtain stable housing.
On June 15, Wigzell asked for more information on the man Mother thought
was Mitchell’s father. Two hours later, Mother texted Wigzell: “Fired, pick bones,
history, bitch, please.” A second text said, “[Mother], Fort Worth, children homes.”
Then several texts from Mother to Wigzell: “Warrant for your arrest, self-served,
sexual harassed, original caseworker I spiked . . . to, false identity.” Mother then
texted that she did not know who or where she was. When Wigzell asked Mother if
she needed help, Mother responded, “I was just diagnosed with schizophrenia, lose
my number.”
Wigzell concluded that there was reason to believe that Mitchell would be
neglectfully supervised because Mother had had a positive drug test when she
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delivered Mitchell, she admitted to using controlled substances while pregnant, and
she later tested positive for drug use. Wigzell noted that Mother had not appeared at
the trial court’s prior contested hearing because she had left Texas for Illinois.
Wigzell did not know if Mother ever returned to Texas.
On July 13, Mitchell was released from the hospital and placed with a foster
family.
Marion Smith was Mother’s first Department case manager. Mother was
uncooperative and would not sign or participate in the family service plan. She did,
however, visit Mitchell three times.
Tamesha Mondy, Mother’s second case manager, was assigned Mother’s case in
March 2021. However, she was unable to contact Mother until April 22—seven days
before trial on the Department’s SAPCR. At that time, Mother was in California and
said she was going to Houston. Mother would not give Mondy her mailing address in
California or Houston. She did tell Mondy that she believed she had completed every
service that she needed to complete and did not need to “complete anything
additional.” During this conversation, Mondy attempted to clear up the identity of
Mitchell’s father. Mother stated that Cane was “an associate” but not Mitchell’s
father; Mother asserted instead that Mitchell Robinson, an attorney in California, was
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Mitchell’s father and that he had died shortly after Mitchell’s birth.3 Mother then
hung up on Mondy. Five days later, Mother called Mondy asking about “Mitchie,”
which was a nickname that had never been used to refer to Mitchell.
Mother testified at the April 29 virtual bench trial. She stated that she lived in
California and proffered a lease that she had signed on October 19, 2020. She further
explained that after renting a room in Chicago “to get an idea” in July 2020, she
returned to California and signed the lease where she had remained other than
“traveling . . . back and forth” to Texas to see Mitchell. However, the Department
pointed out that mail sent to Mother at the address listed on the lease had been
returned as undeliverable, which Mother asserted was a result of the address being
“considered a vacant building.”
Mother claimed that she had repeatedly tried to contact Smith to no avail and
that Smith had “stood [Mother] up” on one of her scheduled visitations with Mitchell.
Mother stated that she had tried to complete some of the services in the family service
plan—“parenting . . . and therapeutic sessions.” To that end, she attempted to
proffer a certificate showing that she had completed a parenting class, but the
certificate was dated in 2004. Accordingly, the trial court excluded the completion
certificate.
This mystery was never solved because neither man could be located. The trial
3
court appointed each alleged father an attorney ad litem, and the trial court later
terminated each alleged father’s parental rights to Mitchell.
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Mother contended that her sister could take Mitchell, but Mother did not have
her sister’s contact information. Mother admitted that she had been arrested in 2018
in California for felony harm to a child causing great bodily injury and explained that
her third child’s removal in California was part of a “third-world country scam.”
Mother stated that she has had in-patient drug treatment approximately three times,
the most recent of which occurred in April 2020, and out-patient treatment
approximately five times. Mother recognized that she received disability payments
based on her diagnoses of bipolar disorder and depression but said that she takes no
medications for those illnesses.
Mondy testified at trial that the termination of Mother’s parental rights would
be in Mitchell’s best interest:
[Mitchell] was born premature and he does have ongoing breathing
issues, which is of concern. And as far as [e]nsuring that he does get the
proper medical treatment that’s dealing with doctors and taking the
proper medication, that is of high concern due to [Mother’s] - - you
know, I guess at this point I don’t have any information with her actually
seeking treatment for herself as far as mental health wise. So just as far
as not even knowing or having the proper knowledge that she would
even make sure that his needs are being assessed and cared for, that is a
concern.
As far as dealing with [Mother] and not having the proper living
situation as far as stability and providing some type of housing
arrangements for him and then also due to the lack of her not
completing services I can’t really assess her stability at this point because
of the lack of information that I have regarding her.
And then also [e]nsuring that his needs will be taken care of.
[Mother] has an extensive drug history as well, which to my knowledge
8
there has not been any type of treatment in regards to that. . . . [Cleaned
up.]
The trial court found by clear and convincing evidence that Mother had
committed one or more of the enumerated acts or omissions justifying termination,
specifically the two child-endangerment grounds. The trial court further found that it
was in Mitchell’s best interest for Mother’s parental rights to be terminated.
Accordingly, the trial court terminated Mother’s parental rights to Mitchell and
appointed the Department as Mitchell’s permanent managing conservator.
Mother now appeals the termination and asserts that the evidence was
insufficient to support either the endangering-environment or the endangering-
conduct ground for termination. She does not attack the trial court’s best-interest
finding.
II. ENDANGERMENT GROUNDS FOR TERMINATION
A. STANDARDS AND SCOPE OF REVIEW
For the trial court to terminate a parent–child relationship, the Department
must have proved two elements by clear and convincing evidence: (1) that Mother’s
actions satisfied one ground listed in Section 161.001(b)(1) and (2) that termination
was in Mitchell’s best interest. Tex. Fam. Code Ann. § 161.001(b); see In re E.N.C.,
384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence
is clear and convincing if it “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.
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Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802. Because Mother does not challenge
the best-interest finding, we will confine our analysis to the endangerment findings.
To determine whether the evidence is legally sufficient, we look at all the
evidence in the light most favorable to the challenged endangerment finding to
determine whether a reasonable fact-finder could have formed a firm belief or
conviction that the finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
assume that the fact-finder settled any evidentiary conflicts in favor of its finding if a
reasonable fact-finder could have done so. Id. We consider evidence favorable to the
finding if a reasonable fact-finder could, and we disregard contrary evidence unless a
reasonable fact-finder could not. Id. The fact-finder is the sole judge of the
witnesses’ credibility. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the fact-finder’s findings and do not supplant them with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we review the whole record to
decide whether a fact-finder could have reasonably formed a firm conviction or belief
that the Department proved the alleged endangerment ground. See In re C.H.,
89 S.W.3d 17, 28 (Tex. 2002). If the fact-finder reasonably could have formed such a
firm conviction or belief, then the evidence is factually sufficient. Id. at 18–19. With
the factual-sufficiency standard so phrased, we note that there is little if any practical
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difference between the legal- and factual-sufficiency review standard in termination
appeals. See In re J.R.K., 104 S.W.3d 341, 344 (Tex. App.—Dallas 2003, no pet.).
Again, our scope of review with either analysis is the entirety of the record
evidence. Mother attempts to narrow this scope to only the trial testimony, noting
that Smith did not testify. However, the trial court heard Alfaro’s, Wigzell’s, Mondy’s,
and Mother’s testimony, and we may presume that the trial court sua sponte took
judicial notice of its own records, including its orders and incorporated findings. See
A.B. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-19-00593-CV, 2020 WL 560585, at
*3 (Tex. App.—Austin Feb. 5, 2020, pet. denied) (mem. op.); In re B.D.A., 546 S.W.3d
346, 363–64 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (op. on reh’g). Thus,
we may consider this evidence in our review.
B. ENDANGERING CONDUCT
In her second point, Mother argues that the evidence did not legally or factually
support a finding that she engaged in endangering conduct. That ground, found in
Section 161.001(b)(1)(E), focuses on the danger directly resulting from the parent’s
conduct, which includes the parent’s affirmative acts, omissions, or failures to act. See
In re K.P., 498 S.W.3d 157, 171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). It
is not necessary that the parent’s conduct be directed at the child or that the child
actually suffer injury. See Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987). The danger to the child may be inferred from parental misconduct. Id. at 533;
K.P., 498 S.W.3d at 171. A parent’s past endangering conduct can create an inference
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that similar conduct could recur and further jeopardize a child’s well-being. In re
M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g).
And a parent’s conduct that subjects a child to a life of uncertainty and instability
endangers the child’s well-being. In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—
Houston [14th Dist.] 2017, pet. denied).
The trial court heard evidence that Mother recognized she was a longtime drug
addict and admitted to taking controlled substances while pregnant with Mitchell.
Indeed, Mitchell tested positive for PCP and amphetamines at birth. Mother could or
would not give information about family members who could care for Mitchell or
about Mitchell’s biological father. She did not have consistent housing, and she
admitted that her California lease was in a vacant building. She had repeatedly
participated in drug-treatment programs but was unable to stay clean. In fact, her
parental rights to her older children had either been surrendered or terminated.
Mother had been diagnosed with bipolar disorder and depression but would not take
medication for the conditions even though she received disability payments. Neither
would Mother participate in the trial court’s family service plan. We conclude this
evidence was legally and factually sufficient to support the trial court’s finding that
Mother engaged in endangering conduct, violating Section 161.001(b)(1)(E). See, e.g.,
In re L.C., No. 12-19-00137-CV, 2019 WL 4727826, at *8 (Tex. App.—Tyler Sept. 27,
2019, no pet.) (mem. op.); In re K.J.G., No. 04-19-00102-CV, 2019 WL 3937278, at *7
(Tex. App.—San Antonio Aug. 21, 2019, pet. denied) (mem. op.); In re A.J.R., No. 13-
12
08-00607-CV, 2009 WL 2574079, at *7–8 (Tex. App.—Corpus Christi–Edinburg
Aug. 20, 2009, no pet.) (mem. op.); In re Z.D., No. 2-07-386-CV, 2008 WL 4354936,
at *7 (Tex. App.—Fort Worth Sept. 25, 2008, no pet.) (mem. op.); W.D. v. Tex. Dep’t
of Fam. & Protective Servs., No. 03-14-00581-CV, 2015 WL 513267, at *4 (Tex. App.—
Austin Feb. 5, 2015, no pet.) (mem. op.).
Mother counters that the Department’s evidence suffered from a “fatal flaw”:
the Department failed to introduce hospital records of or expert testimony on
Mother’s and Mitchell’s positive drug tests, Mother denied that Mitchell had tested
positive for controlled substances at birth, and Mother denied any knowledge of how
she could have tested positive. But the evidence before the trial court showed that
Mother admitted to Alfaro that she had taken marijuana, methamphetamines, and
PCP during her pregnancy and that she had a long history of abusing those
substances. Alfaro confirmed with the hospital that Mother’s and Mitchell’s tests had
been positive. Mother’s protestations that the tests were either unreliable or wrong
and her assertions that other evidence should have been introduced to prove the
positive results were credibility determinations for the fact-finder. See J.P.B.,
180 S.W.3d at 574.
Mother also asserts that any reference to Mother’s use of “PCP” is insufficient
because there was no evidence what PCP referred to, that it was a controlled
substance, or that it endangered Mitchell. We conclude that the Department did not
13
need to present further evidence defining PCP, which is a common initialism for
phencyclidine, or its potential effects on Mitchell. See A.B., 2020 WL 560585, at *4.
III. CONCLUSION
Because the evidence was sufficient to support the trial court’s endangering-
conduct ground for termination, we overrule Mother’s second point. We need not
address her first point, which attacks the trial court’s endangering-environment
finding, because we have found sufficient evidence of the trial court’s other
endangerment finding. See T.L. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-19-
00382-CV, 2019 WL 5779913, at *5 (Tex. App.—Austin Nov. 6, 2019, pet. denied)
(mem. op.); In re J.I.G., No. 01-18-00023-CV, 2018 WL 3233874, at *9 (Tex. App.—
Houston [1st Dist.] July 3, 2018, no pet.) (mem. op.). Accordingly, we affirm the trial
court’s termination order. See Tex. R. App. P. 43.2(a).
/s/ Brian Walker
Brian Walker
Justice
Delivered: August 19, 2021
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