in the Interest of J.L.R. and T.P.R., Children ( 2022 )

Opinion filed February 24, 2022
In The
Eleventh Court of Appeals
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No. 11-21-00195-CV
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IN THE INTEREST OF J.L.R. AND T.P.R., CHILDREN
On Appeal from the 446th District Court
Ector County, Texas
Trial Court Cause No. E-20-010-PC
MEMORANDUM OPINION
This is an appeal from an order in which the trial court, after a de novo hearing,
terminated the parental rights of the mother to J.L.R. and T.P.R. The mother filed
this appeal. On appeal, she presents three 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 order 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. 2021). To terminate
one’s 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 three of the
acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), and (M).
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, and (3) that
Appellant had previously had her parental rights terminated with respect to another
child based upon a finding under subsection (D) or (E). 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 the children.
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). In this regard, 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).
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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 of Family and Protective Services had
a long history of involvement with Appellant. In 2011, her parental rights to five of
her children, born between 2001 and 2009, were terminated based upon a suit
brought by the Department. Included in the trial court’s termination findings in 2011
were two findings that Appellant had endangered the physical or emotional well-
being of those five children.
The case before us began in 2019 and concerns two children born after the
2011 order of termination: J.L.R. and T.P.R. The intake involved J.L.R., who was
approximately five years old at that time. The allegation was that J.L.R.’s older
sibling (whom we will refer to as Tammy) was exposing J.L.R. to marihuana. We
note that Tammy was one of the five children to whom Appellant’s parental rights
had been terminated in 2011.
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Both Tammy and J.L.R. lived with their maternal grandmother when this case
began. J.L.R. had lived with her grandmother for most of her life. The Department’s
investigator observed Appellant and an infant (T.P.R.) at the maternal grandmother’s
house on more than one occasion. The investigator requested that all household
members submit to a drug test. Everyone there, except for Tammy, eventually
submitted to a drug test. The maternal grandmother tested negative, but both J.L.R.
and T.P.R. tested positive for cocaine. Appellant tested positive for cocaine and
methamphetamine at a high level.
Appellant was the primary caretaker of T.P.R. and was determined to be the
source of J.L.R.’s and T.P.R.’s exposure to cocaine, although Appellant denied ever
using cocaine or methamphetamine. A supervisor for the Department and a
conservatorship caseworker both testified that Appellant was known for having a
history of drug use, and Appellant admitted at trial that she had been arrested for
possession of crack cocaine. Furthermore, the maternal grandmother acknowledged
that Appellant’s drug use was the reason for the 2011 termination order.
After the Department removed J.L.R. and T.P.R. from Appellant’s care, the
Department sought, and the trial court entered, an order for aggravated
circumstances against Appellant. Accordingly, the Department was not required to
offer services to Appellant or to make an effort to return J.L.R. and T.P.R. to
Appellant. See FAM. § 262.2015(a).
While this case was pending below, Appellant failed to address the reasons for
removal and failed to demonstrate that she could provide a safe and stable home for
her children. She moved from place to place and hotel to hotel. Furthermore,
Appellant and fifteen-year-old Tammy engaged in domestic violence. Officer
William Dennis Gryder of the Odessa Police Department testified that he was
dispatched to a disturbance at the maternal grandmother’s house. Appellant and
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Tammy had a physical altercation in which they hit and bit each other. Appellant at
one point reinitiated the argument, picking up a hammer when she did so. Both
Appellant and Tammy were arrested that day for assault family violence.
The Department’s conservatorship caseworker, along with the attorney that
was appointed J.L.R.’s and T.P.R.’s attorney and guardian ad litem, believed that it
would be in the children’s best interest for Appellant’s parental rights to be
terminated. By the time of the de novo hearing, J.L.R. and T.P.R. had been placed
together in an “adoptive forever home.” They had been in that foster home for over
nine months and had bonded with their foster parents. The foster parents provided
a safe and stable living environment for J.L.R. and T.P.R., and both children were
thriving in the care of their foster parents.
III. Analysis
A. Endangering Conduct
In her first and second issues, Appellant challenges the legal and factual
sufficiency of the evidence to prove grounds (D) and (E). In this case, 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) 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.
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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. As
such, 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 (1) Appellant’s use of cocaine and
methamphetamine while the children were in her care, (2) both children having
tested positive for cocaine, and (3) Appellant’s long history of drug use—despite
previously having her rights to five children terminated, the trial court could have
reasonably found by clear and convincing evidence that Appellant had engaged in a
course of conduct that endangered J.LR. and T.P.R. Any recent strides made by
Appellant to overcome her past conduct do not negate her past conduct. See In re
J.F.-G., 627 S.W.3d 304, 317 (Tex. 2021). Therefore, we hold that the evidence is
legally and factually sufficient to uphold the trial court’s finding of termination 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 address Appellant’s first
issue. See FAM. § 161.001(b)(1); N.G., 577 S.W.3d at 234–35; see also TEX. R.
APP. P. 47.1.
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B. Best Interest
In her third issue, Appellant challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination of her parental rights
would be in the best interest of J.L.R. and T.P.R.
With respect to the children’s best interest, the evidence, as set forth above,
shows that Appellant endangered these children, exposed them to illegal drugs, and
engaged in domestic violence with one of her older children while this case was
pending. Additionally, Appellant failed to obtain and maintain a stable environment.
At the time of the de novo hearing on termination, both children lived in the
same foster home and were doing very well there. The children were happy and
thriving. The foster parents, with whom the children had bonded, wished to adopt
both children. Appellant had not demonstrated an ability or a willingness to put her
children’s needs ahead of her own, nor had Appellant shown that she could provide
a safe, stable home for the children. Further, the conservatorship caseworker and
the children’s attorney and guardian ad litem believed that it would be in the
children’s best interest to terminate Appellant’s parental rights.
In light of the evidence presented at trial and applying the Holley factors, we
hold that the trial court could reasonably have formed a firm belief or conviction that
termination of Appellant’s parental rights would be in the best interest of J.L.R. and
T.P.R. 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 history of drug abuse and domestic violence, and the
instability of Appellant’s situation, we further hold that the evidence is legally and
factually sufficient to support the trial court’s finding that termination of Appellant’s
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parental rights is in the best interest of J.L.R. and T.P.R. See id. We defer to the trial
court’s finding 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 finding as to best interest is not supported
by clear and convincing evidence. Accordingly, we overrule Appellant’s third issue.
IV. This Court’s Ruling
We affirm the order of the trial court.
W. STACY TROTTER
JUSTICE
February 24, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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