in the Interest of C.A.L. A/K/A C.L. v. a Child v. Texas Department of Family and Protective Services ( 2022 )

Affirmed and Memorandum Opinion filed February 24, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00543-CV
IN THE INTEREST OF C.A.L. A/K/A C.L.-V., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2020-01657J
MEMORANDUM OPINION
The trial court terminated a mother’s parental rights to her one-year-old
child, C.A.L., on the predicate ground of failure to comply with her family service
plan. The court also found that termination was in the child’s best interest and
appointed the Department of Family and Protective Services (the “Department”) as
sole managing conservator. On appeal, the mother challenges the legal and factual
sufficiency of the evidence to support the trial court’s predicate-ground and best-
interest findings. Because we conclude that legally and factually sufficient
evidence supports the trial court’s findings, we affirm the judgment.
Background
C.A.L., a female child, was born in August 2020. Two days after her birth,
the Department received a referral alleging neglectful supervision by C.A.L.’s
father (“Father”). The referral alleged that there had been “past domestic violence
in the family home,” including two incidents in May 2020, while C.A.L.’s mother
(“Mother”) was pregnant with C.A.L., which resulted in Mother seeking medical
treatment. The Department believed there was “a continuing danger to [C.A.L.] if
she were to be returned to the home of her parents.” Specifically, the Department
identified the domestic violence and Mother’s “untreated mental health,” about
which Mother would not provide any information to address the Department’s
concerns. Further, a Department investigator interviewed a nurse at the hospital
where Mother gave birth to C.A.L., and the nurse stated that Mother “wasn’t
interacting with [C.A.L.] much and didn’t want to feed her.” Mother refused to
“talk about anything that has happened in the past without a lawyer present” and
refused to provide information regarding placement options. Mother ultimately
agreed to place C.A.L. with the child’s maternal grandmother.
The Department filed a petition to terminate Mother’s and Father’s parental
rights. At trial on the Department’s petition, the following evidence was presented.
Mother had prior history with the Department. Mother had three children
before C.A.L. but had custody of none of them. Two of the children, twins, lived
with their maternal grandmother.1 Mother signed an irrevocable affidavit of
relinquishment of parental rights regarding at least two of the three children. In a
prior case involving one of Mother’s children, “there were . . . homicidal ideations
1
It is unclear from the record whether the third child also lived with the maternal
grandmother. According to the Department’s removal affidavit, that child may have lived with
the child’s aunt.
2
towards the child.” Trisha West, the primary caseworker in this case, testified that
Mother had “a history of noncompliance and she does not have custody of any of
her children and it’s an ongoing concern in this case as well.”
West testified that Mother had “a substantial history with the [Department]
for mental health issues.” Mother was diagnosed with bipolar disorder and had
been hospitalized several times. West did not believe that Mother was managing
her mental health issues.
West testified that Father also had a history with the Department and that his
parental rights over one of C.A.L.’s older siblings had been terminated on “(d) and
(e) grounds,”2 which constituted grounds for termination in this case. At the time
of trial, Father was on supervised release for assault of a family member.3
The Department created a family service plan for Mother. According to
Department caseworker Teara McKentie, the plan required Mother “to have stable
employment or income for at least six months; to maintain stable housing; to
participate in parenting classes; [to submit to] random drug testing for urinalysis
and for hair follicles, as well as alcohol testing; to participate in a psychological
evaluation; [and to complete] domestic violence classes.” McKentie testified that
2
Under the Family Code, termination is warranted if, inter alia, the parent “knowingly
placed or knowingly allowed the child to remain in conditions or surroundings which endanger
the physical or emotional well-being of the child,” Tex. Fam. Code § 161.001(b)(1)(D), or
“engaged in conduct or knowingly placed the child with persons who engaged in conduct which
endangers the physical or emotional well-being of the child,” id. § 161.001(b)(1)(E). The statute
further provides that parental rights may be terminated if clear and convincing evidence supports
a finding that the parent “had his or her parent-child relationship terminated with respect to
another child based on a finding that the parent’s conduct was in violation of Paragraph (D) or
(E) or substantially equivalent provisions of the law of another state.” Id. § 161.001(b)(1)(M).
Thus, when parental rights have been terminated for endangerment under either section
161.001(b)(1)(D) or (E), to which West was referring when testifying about Father’s previous
terminations, that ground becomes a basis to terminate that parent’s rights to other children.
3
The trial court terminated Father’s parental rights to C.A.L. Father has not appealed the
judgment.
3
Mother was not compliant with the service plan. West testified that Mother
refused to meet with her for the first five months before agreeing to complete the
required services. According to West, Mother had “complied with the services on
the service plan,” except she refused to comply with additional court orders to
submit to hair follicle drug testing and to sign a release for her psychiatric records.
The trial court took judicial notice of two occasions on which Mother submitted to
a urinalysis but refused a hair follicle test. Under Mother’s service plan, no-shows
or refusals were considered positive results. McKentie, who had been the
Department caseworker for Mother’s three other children, testified that Mother had
“used drugs in the past.”
McKentie testified that Mother visited C.A.L. “very scarcely” during
C.A.L.’s placement with her grandmother. When Mother visited, “it would not be
at the agreed-upon time and it would only be for 5 to 10 minutes. And she would
take pictures and she would leave.” Both West and McKentie said that Mother had
not provided any type of support to C.A.L. throughout this case, which the
grandmother corroborated. C.A.L.’s grandmother testified that Mother visited the
child three times and that C.A.L. would cry during the visits because the child was
“not accustomed to [Mother].”
West testified that the Department’s concerns in this case were Mother’s
untreated mental health issues and the history of domestic violence. Similarly,
McKentie testified that the Department was concerned about Mother’s parenting
ability because Mother had “not completed all of the services that were
recommended by the [Department],” such as complying with the hair follicle
testing. McKentie also said that “[i]t does not appear that [Mother] has a bond
with the child due to her -- due to her lack of visitation. And she doesn’t actually
spend any time with the child.” Further, McKentie believed that Mother was still
4
in a relationship with Father, “there’s a domestic violence situation that is ongoing
with their relationship,” and Mother did not complete a domestic violence course
as ordered. In sum, Mother had not demonstrated “any change in the original
circumstances” when C.A.L. was placed into care.
For her part, Mother testified that she believed she could manage her bipolar
disorder: “I recognize when I’m -- when I need to isolate myself and just recover,
you know what I mean, to things that heal me. So when . . . episodes come, I do
things to, you know, be healthy again.” She testified that she had given a list of
her prescription medications to the Department, but she admitted that she had
refused to provide a release of information from her psychiatrist to the Department.
Mother testified that she had “a great relationship” with her psychiatrist. Mother
also said that she loved her daughter and thought they were “well bonded.”
Mother looked forward to “being a Mom.” Mother testified that she lived rent-free
in an apartment behind her father’s house and could provide a safe environment for
C.A.L. Mother asserted that she was no longer in a relationship with Father and
had filed a petition to divorce him. Mother denied ever using illegal drugs and
testified that all her drug tests in this case came back negative.
At the conclusion of the trial, the court found clear and convincing evidence
that Mother did not comply with the provisions of the court-ordered service plan.
See Tex. Fam. Code § 161.001(b)(1)(O). The court further found that termination
of Mother’s rights was in C.A.L.’s best interest and that the Department should be
appointed C.A.L.’s sole managing conservator. See id. § 161.001(b)(2). Based on
these findings, the court signed a final order terminating Mother’s parental rights to
C.A.L.
Mother timely appealed.
5
Analysis
A. Standards of Review
In a proceeding to terminate the parent-child relationship under Texas
Family Code section 161.001, the petitioner must establish by clear and convincing
evidence one or more acts or omissions enumerated under subsection (1) of section
161.001(b) and that termination is in the best interest of the child under subsection
(2). See Tex. Fam. Code § 161.001; In re N.G., 577 S.W.3d 230, 232 (Tex. 2019)
(per curiam); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Involuntary termination
of parental rights is a serious matter implicating fundamental constitutional rights.
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528,
531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Although parental rights are
of constitutional magnitude, they are not absolute. See In re A.C., 560 S.W.3d 624,
629 (Tex. 2018); In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of terminating the parental relationship,
Texas requires clear and convincing evidence to support such an order. See Tex.
Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). “Clear
and convincing evidence” means “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.” Tex. Fam. Code § 101.007; In re J.F.C., 96
S.W.3d at 264. This heightened burden of proof results in a “correspondingly
searching standard of appellate review.” In re A.C., 560 S.W.3d at 630; see also In
re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
In reviewing the legal sufficiency of the evidence in a parental termination
case, we must consider all evidence in the light most favorable to the challenged
finding to determine whether a reasonable fact finder could have formed a firm
belief or conviction that its finding was true. See In re J.O.A., 283 S.W.3d 336,
6
344 (Tex. 2009). We assume that the fact finder resolved disputed facts in favor of
its finding if a reasonable fact finder could do so, and we disregard all evidence
that a reasonable fact finder could have disbelieved. See id.; In re G.M.G., 444
S.W.3d 46, 52 (Tex. App.—Houston [14th Dist.] 2014, no pet.). However, this
does not mean that we must disregard all evidence that does not support the
finding. In re D.R.A., 374 S.W.3d at 531. Because of the heightened standard, we
also must be mindful of any undisputed evidence contrary to the finding and
consider that evidence in our analysis. Id.
In reviewing the factual sufficiency of the evidence under the clear-and-
convincing standard, we consider and weigh disputed evidence contrary to the
finding against all the evidence favoring the finding. In re A.C., 560 S.W.3d at
631; In re J.O.A., 283 S.W.3d at 345. “If, in light of 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.” In re J.O.A., 283 S.W.3d at
345 (internal quotation omitted). We give due deference to the fact finder’s
findings, and we cannot substitute our own judgment for that of the fact finder. In
re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
B. Predicate Ground
In her first issue, Mother argues the evidence is legally and factually
insufficient to support termination under the predicate ground on which the court
relied, namely subsection 161.001(b)(1)(O).
To terminate parental rights pursuant to subsection (O), the Department must
show that (1) the child was removed under chapter 262 of the Texas Family Code
for abuse or neglect, (2) the child has been in the managing conservatorship of the
Department for at least nine months, and (3) the parent “failed to comply with the
7
provision of a court order that specifically established the actions necessary for the
parent to obtain the return of the child.” Tex. Fam. Code § 161.001(b)(1)(O).
Mother challenges the first and third elements of subsection (O); she does not
dispute that C.A.L. had been in the Department’s custody for at least nine months.
Mother first argues that there is no evidence to show that C.A.L. was
removed as a result of abuse or neglect by Mother. The record refutes Mother’s
contention.
The words abuse and neglect are “used broadly” in the context of subsection
(O) and “necessarily include[] the risks or threats of the environment in which the
child is placed.” In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). Thus, if a parent
has neglected, sexually abused, or “otherwise endangered her child’s physical
health or safety,” such that initial and continued removal are appropriate, the child
has been removed from the parent under chapter 262 for the abuse or neglect of the
child. See id.Here, McKentie testified that C.A.L. “came into care for neglectful
supervision, along with substance abuse.” The removal affidavit, filed in support
of the Department’s original petition, provided that a hospital nurse stated that
Mother “wasn’t interacting with [C.A.L.] much and didn’t want to feed her.” The
affidavit also provided that there was a history of domestic violence at the family
home and that there was a continuing danger to C.A.L. if she were to be returned to
the home of her parents. While in the hospital after giving birth to C.A.L., Mother
denied to the Department investigator that there had ever been instances of
domestic violence in the home, despite having twice sought medical treatment
during pregnancy as a result of domestic violence. Mother believed that she and
Father were “suitable” caregivers. Prior to removal, Mother refused to cooperate
with the Department’s investigator or to provide information regarding her mental
8
health treatment in response to the Department’s concerns, which were predicated
on Mother’s history of untreated bipolar disorder (including symptoms of paranoia
and mood instability) and her past homicidal comments regarding another child.
After an adversary hearing, the court found sufficient evidence to satisfy a
person of ordinary prudence and caution that C.A.L. faced an immediate danger to
her physical health or safety, that the urgent need to protect her required her
immediate removal, and that she faced a substantial risk of a continuing danger if
she were returned home. Mother did not challenge those findings.4
The Department’s evidence and the trial court’s orders establish that C.A.L.
was removed from Mother under chapter 262 for abuse or neglect. Specifically,
Mother’s inability or unwillingness to feed or interact with her newborn infant,
Mother’s willingness and intention to take the child back into an unstable home
environment with Father where there had been prior instances of domestic
violence, and Mother’s inability or unwillingness to prove that she was treating her
bipolar disorder support the court’s finding. See id. at 248-49; see also In re
J.S.G., No. 14-08-00754-CV, 2009 WL 1311986, at *6-7 (Tex. App.—Houston
[14th Dist.] May 7, 2009, no pet.) (mem. op.) (relying on caseworker’s affidavit in
support of the Department’s removal request, as well as trial court’s temporary
orders concluding that the children faced a danger to their physical health or safety
and a substantial risk of a continuing danger if returned home, to conclude that the
evidence established that the children were removed “as a result of neglect specific
to them by” the mother).
Mother next argues that she completed the services required under the plan
“to some extent,” just “not to the satisfaction of the [Department].”
4
See In re E.C.R., 402 S.W.3d at 248 & n.8 (noting that mandamus relief is available to
challenge trial court’s findings in support of removal).
9
McKentie testified that Mother was not compliant with the service plan.
West testified that “[o]n the actual family plan of service, there’s nothing left for
[Mother] to complete.” When asked why the Department was seeking termination
under subsection (O) if Mother had finished the plan, West stated, “Because she
was ordered to sign a release for her psychiatric records and she failed to do so.”
Mother admitted that she was aware of the requirement to follow court orders, that
she knew one of the consequences of not following court orders was termination of
her parental rights, and that she decided not to comply with the “specific thing” of
providing a release of her psychiatric records. Mother also admitted that she did
not submit to all requests for court-ordered hair follicle testing and that she was not
employed.
The record contains sufficient undisputed evidence that Mother knew what
was required by the family service plan, including additional court orders to
implement or require compliance with the plan, and understood her failure to
comply was a ground for termination of her parental rights. See In re A.W.B., No.
14-11-00926-CV, 2012 WL 1048640, at *3-4 (Tex. App.—Houston [14th Dist.]
2012, no pet.) (mem. op.) (holding that trial court can take judicial notice of prior
proceedings and that parent’s testimony reflecting knowledge of family service
plan and its consequences was sufficient to uphold trial court’s finding under
subsection (O)).
To the extent that Mother’s contention that she completed the plan “to some
extent” raises an argument of substantial compliance, her assertion is unavailing.
Substantial or partial compliance with a court-ordered family service plan is
generally insufficient to avoid termination pursuant to subsection (O). See In re
M.C.G., 329 S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010, pet. denied)
(“The Family Code does not provide for substantial compliance with a family
10
services plan.”); In re T.T., 228 S.W.3d 312, 319-20 (Tex. App.—Houston [14th
Dist.] 2007, pet. denied) (noting Texas courts have uniformly found substantial
compliance with the provisions of a court order inadequate to avoid a termination
finding under subsection (O)). Whether a parent has “done enough” to comply
with the court-ordered service plan under subsection (O) is generally a fact
question. In re S.M.R., 434 S.W.3d 576, 584 (Tex. 2014). We defer to the fact
finder’s determination that Mother’s refusals to comply with hair follicle testing
requests, as well as her refusal to provide her psychiatric records and her inability
to obtain and maintain stable employment, demonstrated a failure to comply with
the court’s orders sufficient to terminate Mother’s parental rights under subsection
161.001(b)(1)(O). E.g., In re A.D., 203 S.W.3d 407, 411-12 (Tex. App.—El Paso
2006, pet. denied) (affirming termination under subsection (O) because parent
failed to meet service plan’s material requirements including drug assessment,
finding a job, and providing a safe home).
Considered in the light most favorable to the trial court’s finding, the
evidence is legally sufficient to support the trial court’s determination that
termination of Mother’s parental rights was justified under Family Code section
161.001(b)(1)(O). Further, in view of the entire record, we conclude that the
disputed evidence is not so significant as to prevent the trial court from forming a
firm belief or conviction that termination was warranted under section
161.001(b)(1)(O). Accordingly, we conclude the evidence is legally and factually
sufficient to support the 161.001(b)(1)(O) finding. We overrule Mother’s first
issue.
C. Child’s Best Interest
In Mother’s second issue, she challenges the legal and factual sufficiency of
the evidence to support the trial court’s best-interest finding.
11
1. Applicable law
The best-interest inquiry is child-centered and focuses on the child’s well-
being, safety, and development. In re A.C., 560 S.W.3d at 631. The fact finder
may consider several factors to determine the child’s best interest, including:
(1) the desires of the child; (2) the present and future physical and emotional needs
of the child; (3) the present and future emotional and physical danger to the child;
(4) the parental abilities of the persons seeking custody; (5) the programs available
to assist those persons seeking custody in promoting the best interest of the child;
(6) the plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) acts or omissions of the parent
that may indicate the existing parent-child relationship is not appropriate; and
(9) any excuse for the parents’ acts or omissions. Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976); see also Tex. Fam. Code § 263.307(b) (listing factors to
consider in evaluating parents’ willingness and ability to provide the child with a
safe environment).
Courts apply a strong presumption that the best interest of the child is served
by keeping the child with the child’s natural parents, and it is the Department’s
burden to rebut that presumption. In re D.R.A., 374 S.W.3d at 531. Prompt and
permanent placement in a safe environment also is presumed to be in the child’s
best interest. Tex. Fam. Code § 263.307(a). A finding in support of “best interest”
does not require proof of any unique set of factors, nor does it limit proof to any
specific factors. See Holley, 544 S.W.2d at 371-72.
2. Application
We review the Holley factors in light of the evidence at trial. Applying
them, we observe that neither party presented testimony regarding C.A.L.’s
desires. However, the Department’s caseworkers testified that C.A.L. had bonded
12
well with her grandmother and her siblings who also lived with the grandmother.
See In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016,
pet. denied) (when 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 the foster family, and have spent minimal time with a parent). The
Department also presented evidence that C.A.L.’s grandmother was capable of
meeting the child’s present and future emotional and physical needs. McKentie
believed that C.A.L. was safe and that her grandmother could provide a safe
environment long term. According to West, C.A.L. had “been with the
grandmother for her entire life.”
In contrast, the evidence at trial established that Mother only visited C.A.L.
three times during the pendency of the case, for very short durations, during which
C.A.L. would become upset. Mother testified that C.A.L.’s grandmother prevented
Mother from visiting, but the grandmother disputed Mother’s claims. The trial
court was free to believe the grandmother’s testimony and disbelieve Mother’s.
Thus, Holley factors 1, 2, and 7 weigh in favor of the trial court’s finding.
The evidence also showed that Mother had a history of mental illness, for
which she may or may not have sought treatment. For instance, West testified that
she did not think Mother was treating her bipolar disorder. Mother testified that
she saw her psychiatrist once every two to three months, or once every six months,
and she was on medication to treat her bipolar disorder and anxiety. But Mother
refused to release her medical records to the Department for review, as ordered by
the court. When asked what she did to manage her mental health, Mother stated, “I
stay really, really close to God. He’s like the apple that I bite. I do a lot of yoga. I
stay around people who lift me up, are not manipulative.” The trial court
reasonably could conclude, by crediting the Department’s evidence of Mother’s
13
history of untreated bipolar disorder and her refusal to show proof of a treatment
plan and by not crediting Mother’s vague assertions, that Mother in fact was not
treating her mental health condition and that Mother’s untreated mental health
posed a danger to C.A.L.’s physical and emotional needs. Thus, Holley factors 3
and 8 also weigh in favor of the trial court’s finding.
Mother successfully obtained housing and expressed her belief that she
could provide a stable and safe home for C.A.L. However, West testified that she
had a safety concern regarding Mother’s home, specifically that “she has two geese
that she owns in front of the front yard and they bite. And [Mother] said that she
was not going to get rid of the geese.” Further, Mother lived in an apartment rent-
free, never provided proof of income, and admitted that she was not employed.
Mother previously had received government benefits but was no longer receiving
those at the time of trial. According to West, Mother did not have “any way to
provide for the child.” C.A.L.’s grandmother stated that Mother never provided
any support for the child. This evidence addresses Holley factor 4 and weighs in
favor of the trial court’s finding.
We conclude that there is legally and factually sufficient evidence to support
the trial court’s finding that termination was in C.A.L.’s best interest. Although
Mother expressed love for her daughter and claimed she could provide a stable
home appropriate for C.A.L., the Department’s caseworkers testified that Mother
had not secured a stable home, employment, or income. Mother also did not
meaningfully visit or provide support for C.A.L. McKentie testified that Mother
had not demonstrated “any change in the original circumstances” that existed when
C.A.L. was placed into care. From Mother’s inability or unwillingness to effect
positive environmental and personal changes, the trial court reasonably could have
inferred Mother’s parental abilities weighed in favor of finding termination was in
14
C.A.L.’s best interest. See In re S.R., 452 S.W.3d 351, 368 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied).
Viewing the evidence in the light most favorable to the judgment for our
legal-sufficiency analysis and all of the evidence equally for our factual-
sufficiency analysis, we conclude that a reasonable fact finder could have formed a
firm belief or conviction that termination of Mother’s parental rights was in
C.A.L.’s best interest. See Tex. Fam. Code § 161.001(b)(2).
We overrule Mother’s second issue.
Conclusion
We affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Zimmerer, and Hassan. (Hassan, J., concurring
in the judgment only.)
15