in the Interest of A.M. and A.M., Children ( 2021 )

AFFIRMED and Opinion Filed August 30, 2021
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00170-CV
IN THE INTEREST OF A.M. AND A.M., CHILDREN
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court Cause No. 87085
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Carlyle
Opinion by Justice Carlyle
Father appeals the trial court’s order terminating his parental rights to A.M.
and A.M. We affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.
After Mother and Father separated, their children, A.M. and A.M., lived with
Mother. The Department began investigating Mother after it received reports of
abuse and neglect in Mother’s home. When Mother failed a court-ordered drug test,
the Department contacted Father and informed him it was removing the children
from Mother’s care. Rather than bringing the children to the Department as
instructed, Father withdrew the children from their school and tried to evade the
Department. The Department located and took custody of the children in March
2019, when Father tried to enroll them in a new school. After the removal, the
Department lost contact with Father, who became incarcerated in November 2019.
Based on concerns raised during its investigation, the Department sought to
terminate both Mother’s and Father’s parental rights.1 At Father’s trial, Department
caseworker Lee Ann Walston detailed her efforts to locate Father and engage him in
services aimed at reunification. She explained that Father did not cooperate and did
not maintain contact with either the Department or the children. She noted that
Father never visited the children while she was assigned to the case, and she opined
that, because Father was incarcerated, he could not provide a safe and stable
environment for them. Moreover, because he failed to maintain contact with the
Department or complete any services to alleviate its concerns, the Department had
no reason to think he could provide for the children. Ms. Walston believed
termination was in the children’s best interest.
Marsha Womack, a caseworker who took over the case from Ms. Walston,
also detailed her efforts to work with Father towards reunification. She testified that
she wrote Father monthly to update him about the children and explain the
Department’s plan for them, and she called him on several occasions. She sent Father
the service plan the Department created for him, which he acknowledges receiving
1
The trial court terminated Mother’s rights at a February 2020 hearing, but Mother is not a party to this
appeal.
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in July 2020, and she asked if there were any services he could complete while
incarcerated. She also investigated Father’s relatives for potential placements, but
she could not find a suitable candidate. She said that, while she was assigned to the
case, Father asked about the children only once, and he neither visited them nor
provided anything for them. Like Ms. Walston, Ms. Womack opined that Father
cannot provide a safe environment for the children because he is incarcerated and
because he has done nothing to alleviate the Department’s concerns about placing
the children in his care. Ms. Womack likewise believed termination was in the
children’s best interest.
CASA advocate Roxanne Turner testified that she has seen vast improvement
in the children since the beginning of the case. In opining that termination would be
in their best interest, she voiced concerns about allegations of physical abuse and
neglect by Father. She also testified that the children are anxious and afraid about
seeing Father again.
In his testimony, Father disputed the Department’s account of its interactions
with him. He said he tried to contact the Department many times, but nobody would
return his calls. He also said he visited the children once, but the Department cut the
visit short after the children became upset. He thus chose not to visit them again
because he did not want to traumatize them. He admitted using drugs after the
children were removed from his care, and he acknowledged he was serving time for
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criminal offenses for which he was arrested while the case was pending. He also
admitted he could offer neither a suitable caregiver nor a plan to provide for the
children during his incarceration. Father acknowledged he was accused of
disciplining the children by striking them with a coat-hanger, but he denied that
allegation.
At the conclusion of the trial, the court terminated Father’s parental rights on
the ground that he constructively abandoned the children. See TEX. FAM. CODE
§ 161.001(b)(1)(N). Father appeals, contending the evidence is legally and factually
insufficient to support the trial court’s findings under subsections (i) and (iii) of
family code section 161.001(b)(1)(N). See id.
A trial court may terminate the parent-child relationship only if it finds by
clear and convincing evidence that: (1) one or more of the statutory grounds for
termination enumerated in the Texas Family Code has been established; and (2)
termination is in the child’s best interest. Id. § 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.” Id. § 101.007.
Our standards of review on appeal reflect the elevated burden of proof at trial.
In re A.B., 437 S.W.3d 498, 502 (Tex. 2014); In re A.T., 406 S.W.3d 365, 370 (Tex.
App.—Dallas 2013, pet. denied). Both legal- and factual-sufficiency reviews require
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us to review the evidence to determine whether the factfinder reasonably could have
formed a firm belief or conviction that the grounds for termination were established.
See In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002); In re L.E.H., No. 05-18-00903-
CV, 2018 WL 6839565, at *4 (Tex. App.—Dallas Dec. 31, 2018, no pet.) (mem. op.).
The difference between the two reviews lies primarily in the way we consider
evidence contrary to a finding. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).
Our review of legal sufficiency requires us to view all the evidence in the light
most favorable to the finding. Id. Thus, we assume the factfinder resolved all factual
issues in favor of the finding and disregard all disputed evidence to the contrary. Id.
at 630–31. Our review of factual sufficiency, in contrast, requires us to weigh the
disputed evidence contrary to the finding and determine whether, in light of the entire
record, the evidence that could not reasonably be credited in favor of the finding is
so significant that it would prevent the formation of a firm belief or conviction that
the finding is true. Id. at 631. In applying this standard, we must be mindful not to
scrutinize the evidence to the point where “the only factfindings that could withstand
review are those established beyond a reasonable doubt.” In re C.H., 89 S.W.3d 17,
26 (Tex. 2002).
To terminate parental rights under section 161.001(b)(1)(N), the court must
find that a child has been in the permanent or temporary managing conservatorship
of the Department for not less than six months, and: “(i) the Department made
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reasonable efforts to return the child to the parent; (ii) the parent has not regularly
visited or maintained significant contact with the child; and (iii) the parent has
demonstrated an inability to provide the child with a safe environment.”
THE EVIDENCE SUFFICIENTLY SUPPORTS THE TRIAL COURT’S FINDING THAT THE
DEPARTMENT MADE REASONABLE EFFORTS TO RETURN THE CHILDREN
Father first contends the evidence does not show the Department made
reasonable efforts to return the children to him. See id. § 161.001(b)(1)(N)(i). On
this issue, it is important to note that “the question is whether the Department made
reasonable efforts, not ideal efforts.” In re X.A.S., No. 05-19-01082-CV, 2020 WL
1042520, at *3 (Tex. App.—Dallas Mar. 3, 2020, no pet.) (mem. op) (quoting In re
F.E.N., 542 S.W.3d 752, 766–67 (Tex. App.—Houston [14th Dist.] 2018, pet.
denied)).
Father argues the Department did not make reasonable efforts because it never
properly served him with the petition, noting there is no signed citation return in the
record. But Father admitted at trial that he was served in Smith County jail, and he
filed an answer in the case, which made service unnecessary. See TEX. R. CIV. P. 121;
Phillips v. Dallas Cty. Child Protective Servs. Unit, 197 S.W.3d 862, 865 (Tex.
App.—Dallas 2006, pet. denied). To the extent Father complains the Department
waited until July 2020 to serve him, the record supports a conclusion that Father
contributed to the lengthy delay by frustrating the Department’s efforts to locate him.
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In any event, the record demonstrates the Department’s reasonable efforts to
return the children. Ms. Walston testified she contacted Father in March 2019 to
schedule a meeting and tell him about pending court dates. Father skipped both the
scheduled appointment and the court hearings. Ms. Walston then created service and
visitation plans in May 2019, but she could not give them to Father because he
avoided her calls. In July or August 2019, after numerous unsuccessful attempts to
reach him, Ms. Walston contacted Father’s mother, who provided an alternative
phone number for reaching him. Ms. Walston left Father a voicemail at the new
number and tried to schedule a meeting when he finally returned her call in late
August, but the call got disconnected. After additional unsuccessful attempts to
contact Father, she assigned a special investigator to locate him in October 2019, but
she was never able to reach Father. Eventually, Ms. Walston learned about Father’s
incarceration, and she visited him at the Smith County jail in February 2020.
Ms. Womack testified she contacted Father at the jail several times after she
took over the case from Ms. Walston. She updated Father on the status of the case,
provided a copy of the service plan, asked whether there were any services he could
complete at the jail, and investigated relatives for potential placements. See
In re N.R.T., 338 S.W.3d 667, 674 (Tex. App.—Amarillo 2011, no pet.) (evidence
that the Department made a service plan and investigated placements with relatives
was sufficient to show reasonable efforts to return child to incarcerated parent); In
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re K.J.T.M., No. 06-09-00104-CV, 2010 WL 1664027, at *3–4 (Tex. App.—
Texarkana Apr. 26, 2010, no pet.) (mem. op.) (same).
Although Father disputes the Department’s version of events and testified that
the Department would not take his calls or return his messages, the trial court could
have found his testimony lacked credibility. See In re X.A.S., 2020 WL 1042520, at
*2 (“[W]e must defer to the factfinder’s determinations as to witness credibility.”).
Viewing the evidence in the light most favorable to the termination findings, we
conclude the trial court could have formed a firm belief or conviction that the
Department made reasonable efforts to return the children to Father.
THE EVIDENCE SUFFICIENTLY SUPPORTS THE TRIAL COURT’S FINDING THAT FATHER
DEMONSTRATED AN INABILITY TO PROVIDE A SAFE ENVIRONMENT FOR THE CHILDREN
Father next contends the evidence does not show he demonstrated an inability
to provide a safe environment for the children. See TEX. FAM. CODE
§ 161.001(b)(1)(N)(iii). For this element, the family code provides a list of non-
exhaustive factors to consider, including as relevant here: (1) the child’s physical or
mental vulnerabilities; (2) the frequency and nature of the child’s out-of-home
placements; (3) whether the child is fearful of living in or returning to the parent’s
home; (4) whether the parent has a history of abusive or assaultive conduct; (5)
whether the parent has a history of substance abuse; (6) the parent’s willingness and
ability to seek out, accept, and complete counseling services and to cooperate with
and facilitate an appropriate agency’s close supervision; and (7) whether the parent
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demonstrates adequate parenting skills, including providing the child with
minimally adequate health and nutritional care, a safe physical home environment,
and an understanding of the child’s needs and capabilities. See id. § 263.307(b); In
re E.M., No. 05-18-01161-CV, 2019 WL 1449791, at *5 (Tex. App.—Dallas Apr. 1,
2019, no pet.) (mem. op.).
The record shows that, despite knowing the children were in the Department’s
care, Father chose not to maintain contact with them. He admitted he did not provide
any support for the children during the case, and he acknowledged he could not
arrange for an appropriate person to care for them during his incarceration. The
evidence also suggests Father failed to cooperate and maintain contact with the
Department, failed to provide the Department with information regarding his living
and employment circumstances, has a history of drug abuse, and engaged in criminal
activity while the case was pending, resulting in his incarceration. See In re D.P.G.,
No. 05-20-00652-CV, 2021 WL 2472717, at *9 (Tex. App.—Dallas June 17, 2021,
no pet. h.) (evidence sufficient where mother had history of drug abuse, failed to
maintain contact with the Department, failed to provide information about living or
employment circumstances, and failed to arrange for an appropriate person to care
for the child); In re L.L.M., No. 04-13-00351-CV, 2013 WL 5950151, at *3 (Tex.
App.—San Antonio Nov. 6, 2013, no pet.) (mem. op.) (noting that criminal activity
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and incarceration are relevant factors in determining whether a parent demonstrated
an inability to provide a safe environment).
Further, the record shows that one of the children has psychiatric issues for
which Father does not support the prescribed treatment, and both children have
behavioral issues that have improved while in the Department’s care. The children
have had several out-of-home placements, and there was testimony that the children
fear the prospect of returning to Father. Viewing the evidence in the light most
favorable to the termination findings, we conclude the trial court could have formed
a firm belief or conviction that Father demonstrated an inability to provide the
children with a safe environment.
We affirm the trial court’s judgment.
210170f.p05 /Cory L. Carlyle/
CORY L. CARLYLE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF A.M. AND On Appeal from the 354th Judicial
A.M., CHILDREN District Court, Hunt County, Texas
Trial Court Cause No. 87085.
No. 05-21-00170-CV Opinion delivered by Justice Carlyle.
Justices Myers and Osborne
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
Judgment entered this 30th day of August, 2021.
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