in the Interest of M.M.S. and C.E.S., Children ( 2016 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00271-CV
IN THE INTEREST OF M.M.S. AND C.E.S., CHILDREN
On Appeal from the 316th District Court
Hutchinson County, Texas
Trial Court No. 41, 639, Honorable James M. Mosley, Presiding
October 6, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
E.S., the mother of M.M.S. and C.E.S.,1 appeals the trial court’s judgment
terminating her parental rights to the children.2 The children were seven and five years
old, respectively, at the time of the trial. The trial court found by clear and convincing
evidence that E.S.’s parental rights should be terminated pursuant to subsections (D),
(E), (O), and (P) of Section 161.001(b)(1). See TEX. FAM. CODE ANN.
1
Pursuant to Texas Rule of Appellate Procedure 9.8 the children and all parties will be referred to
by their initials.
2
The father, N.S., has not appealed the trial court’s judgment terminating his parental rights and
is not a party to this appeal.
§ 161.001(b)(1)(D), (E), (O), (P) (West Supp. 2016).3 The trial court also found by clear
and convincing evidence that termination of E.S.’s parental rights was in the best
interest of the children. See § 161.001(b)(2). E.S. appeals on the ground that the best
interest finding entered by the trial court is not supported by legally or factually sufficient
evidence. She does not contest the trial court’s findings regarding the predicate acts
upon which the termination was based. We will affirm.
Factual and Procedural Background
E.S. has a long history of involvement with the Department of Family and
Protective Services (Department). Additionally, E.S. has had involvement with the
Oklahoma Department of Human Services, that state’s equivalent to the Texas
Department of Family and Protective Services. The current case arose out of an
incident on October 25, 2014. Officer Stephanie Willoughby went to the apartment that
E.S. shared with her boyfriend to conduct a “welfare check.” Upon arriving, Willoughby
found that E.S. had been assaulted by her boyfriend, Clay, after she had forcefully
kicked him out of the apartment. Willoughby knew that E.S. had several warrants
outstanding for traffic offenses and, as part of the assault investigation, arrested E.S. for
these warrants. After ascertaining that there was no one to take care of the children,
Willoughby contacted the Department.
The Department’s investigator, Wanda Trim, investigated the incident. At the
time of her visit with E.S., E.S. was in jail on the warrants. E.S. advised Trim that she
awoke to find Clay smoking marijuana in the apartment and asked him to leave. This
confrontation then escalated into Clay’s assault of E.S. While Trim was interviewing
E.S. at the jail, E.S. denied that she had been using drugs and asserted she was simply
3
Further reference to the Texas Family Code will be by reference to “Section ____” or “§ ____.”
2
trying to protect the children from Clay’s drug usage. The children were placed with
E.S.’s sister. This placement lasted for approximately one month, when the sister
returned the children to the Department stating she could not continue to take care of
the children due to their special needs.
Despite stating she was not using drugs, on November 6, 2014, E.S. was
administered a drug test and tested positive for amphetamine, methamphetamine, and
marijuana. Further, E.S. admitted to Trim that she had used drugs while caring for the
children and that Clay had also used drugs in the presence of the children. The
daughter, M.M.S., was administered a hair follicle drug test on November 5, 2014, and
the test was positive for methamphetamine. As a result of E.S.’s continued use of
drugs, the Department then filed this petition seeking termination on December 30,
2014.
During the trial, the evidence showed that E.S. had a long-standing addiction to
drugs. Specifically, E.S. admitted that she had been addicted to methamphetamine for
years. E.S. had two arrests for drug-related offenses in 2004. Her first arrest that year
was for delivery of methamphetamine in July of 2004, followed by an arrest for
possession of the same drug in December 2004. She was placed on deferred
adjudication in 2005; however, her deferred adjudication was adjudicated, and E.S. was
sentenced to serve five years in prison. According to her testimony, E.S. used
methamphetamine on an almost daily basis between 2004 and 2006 before being sent
to prison.
E.S. was released from prison on parole in October 2008. At that time, E.S.
began living with N.S., the father of the children. N.S. testified that he and E.S. used
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methamphetamine on a regular basis when they were together. This usage included
the period of time after they had the children of the marriage.
M.M.S. was born on May 23, 2009, prematurely. She has suffered from
difficulties breathing since birth. M.M.S. has been in an early childhood intervention
program since shortly after her birth. M.M.S. has significant developmental delay issues
and has been diagnosed as mildly retarded. C.E.S. was born July 1, 2011. Since early
on, he has demonstrated significant issues regarding anger management.
E.S. admitted that she began using methamphetamine intermittently after M.M.S.
was born. E.S. was arrested for possession of marijuana and a parole warrant in 2010.
As a result of this arrest, E.S. spent seventy-seven days in jail. In 2012, E.S. was
contacted by the Department regarding a report that she was using methamphetamine.
E.S. was scheduled for a drug test but failed to appear. Instead, E.S. took the children
to Oklahoma. E.S. testified she fled to Oklahoma with the children because she knew
she could not pass the drug test.
While E.S. was living in Oklahoma with the children, they were removed from her
care due to allegations relating to drug usage and because of her open case in Texas.
E.S. testified that she completed her service plan in Oklahoma and the children were
returned to her possession on a trial basis in August 2013 and fully in December 2013.
The Oklahoma case was dismissed in February 2014. Yet, within two weeks after
returning to Texas, E.S. was arrested for possession of a controlled substance. E.S.
admitted that she returned to using methamphetamine after returning to Texas.
In June or July of 2014, E.S. became involved with Clay. E.S. admitted that Clay
was a methamphetamine user. She further admitted that she did use
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methamphetamine with Clay while the children were living in the home with them. Clay
was the boyfriend who assaulted E.S. in the presence of the children in October of
2014.
During the trial, a significant part of the testimony dealt with the medical problems
faced by M.M.S. M.M.S. has had issues with her lungs since her birth. Lori Williams,
the nurse at the elementary school where M.M.S. attended, testified that on October 17,
2014, M.M.S. came to school and appeared to be “really sick.” According to Williams,
M.M.S. was suffering from increased respiration rate and increased heart rate. Williams
attempted to contact E.S., but the phone number she had for E.S. was not a working
number. The child’s teacher’s aide rode home on the bus with M.M.S. The following
Monday, Williams again noticed that M.M.S. appeared to be sicker. Williams again
attempted to contact E.S. to no avail. Williams finally left a voicemail message with
M.M.S.’s grandmother. On that Monday, Williams concluded that M.M.S.’s oxygen level
was too low and she appeared to be panting and struggling to breath. Williams
consulted a nurse practitioner at a nearby clinic and, based on that discussion, called an
ambulance to take M.M.S. to the hospital.
Because Williams could not contact E.S., she contacted the sheriff’s office and
asked that they try to locate E.S. While in the ambulance, M.M.S. was given oxygen,
steroid shots, and breathing treatments. At the hospital, M.M.S. was diagnosed with an
upper respiratory infection.
E.S. arrived at the hospital approximately thirty minutes after M.M.S. While
talking to E.S., Williams attempted to get current contact information for her, to include
an address and working phone number. E.S. declined to give Williams the information
5
stating that she had active warrants and did not want to give that information out.
Williams testified that E.S. did not seem to be appropriately concerned with M.M.S.’s
welfare. Upon M.M.S.’s discharge from the hospital, E.S. was advised to make sure
that M.M.S. receive her breathing treatments at home in addition to those that would be
given to her at the school. After M.M.S. continued to come to school suffering from
apparent breathing difficulty, Williams contacted the Department over her concerns that
M.M.S. was not receiving her breathing treatments at home.
When E.S. was arrested during the domestic assault investigation, Williams was
asked to care for C.E.S. while E.S. was in jail. Williams agreed to keep C.E.S. for a
week under the Department’s safety plan while E.S. was in jail. However, although E.S.
had agreed to contact the Department when she was released from jail, she failed to do
so. The investigator for the Department, Trim, eventually tracked E.S. down at a leather
shop. All E.S. could say regarding her failure to contact the Department when she was
released from jail was that it was just bad judgment on her part. E.S. admitted during
her testimony that, during this time, she continued to use methamphetamine while
caring for M.M.S.
The testimony at trial revealed that E.S. had agreed to a service plan of various
steps necessary for her to regain possession of her children. Initially, E.S. signed the
service plan on February 11, 2015. After a new caseworker had been assigned the
case, E.S. again reviewed the service plan with her new caseworker, Cristin Davis.
Davis testified that E.S. had failed to complete the required psychological evaluation,
did not follow through with inpatient treatment as recommended by the OSAR4
evaluation, and failed to remain drug-free. E.S. testified that she did not maintain a
4
Outreach, Screening, Assessment, and Referral Center.
6
drug-free lifestyle. As to the psychological testing requirement, E.S. testified she
scheduled an appointment for the evaluation but was arrested the day before the
appointment. Although not mentioned in Davis’s testimony, E.S. admitted that she had
not maintained any employment prior to being incarcerated.
At the time of trial, the district attorney where E.S. resided revealed that E.S. had
pending charges for possession of a controlled substance and tampering with evidence
that arose from an arrest in February 2014. Also pending at the date of trial was
another possession of a controlled substance charge that arose in February 2015, and
a pending indictment for credit card abuse that also arose in February 2015.
After hearing the evidence, the trial court entered a final order in suit affecting
parent-child relationship that terminated E.S.’s parental rights on the following grounds:
1. Knowingly placing or knowingly allowing the children to remain in
conditions or surroundings which endanger the physical or emotional well-
being of the children;
2. Engaging in conduct or knowingly placing the children with persons who
engaged in conduct which endangers the physical or emotional well-being
of the children;
3. Failing to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the
children;
4. Using a controlled substance, as defined by Chapter 481, Health and
Safety Code, in a manner that endangered the health or safety of the
children.
See § 161.001(b)(1)(D), (E), (O), (P) (West Supp. 2016). Additionally, the trial court
found that termination of E.S.’s parental rights was in the best interest of the children.
§ 161.001(b)(2).
7
E.S. does not challenge the trial court’s finding regarding the four predicate acts;
therefore, we will treat those acts as conceded by E.S. Instead, E.S. only challenges
the legal and factual sufficiency of the evidence to sustain the trial court’s decision that
termination was in the best interest of the children. We disagree with E.S. and will
affirm the trial court’s judgment.
Standard of Review
The natural right existing between parents and their children is of constitutional
dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,
455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). A decree terminating
this natural right is complete, final, irrevocable, and divests for all time that natural right
as well as all legal rights, privileges, duties, and powers between the parent and child
except for the child’s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are
required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846
(Tex. 1980). However, parental rights are not absolute, and the emotional and physical
interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89
S.W.3d 17, 26 (Tex. 2002).
The Texas Family Code permits a court to terminate the parent-child relationship
if the petitioner establishes both (1) one or more acts or omissions enumerated under
Section 161.001(b)(1), and (2) that termination of the parent-child relationship is in the
best interest of the child. § 161.001(b). Though evidence may be relevant to both
elements, each element must be proved, and proof of one does not relieve the burden
of proving the other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground
and best interest of the child must be proved, only one statutory ground is required to
8
terminate parental rights under Section 161.001(b). See In re A.V., 113 S.W.3d 355,
362 (Tex. 2003). Therefore, we will affirm the trial court’s judgment of termination if
legally and factually sufficient evidence supports any one of the grounds found in the
judgment, provided the record shows that it was also in the best interest of the child for
the parent’s rights to be terminated. See id.
Due process requires the application of the clear and convincing standard of
proof in cases involving involuntary termination of parental rights. In re J.F.C., 96
S.W.3d 256, 263 (Tex. 2002); see § 161.206(a) (West 2014). “‘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.” § 101.007 (West 2014). This standard, which focuses on whether a
reasonable jury could form a firm belief or conviction, retains the deference a reviewing
court must have for the factfinder’s role. In re C.H., 89 S.W.3d at 26.
When we employ the clear and convincing evidence standard, we are not saying
that the evidence must negate all reasonable doubt or that the evidence is required to
be uncontroverted. See In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995,
no writ). We may not substitute our judgment for that of the factfinder; rather, we must
still provide due deference to the decision of the factfinder. See In re A.B., 437 S.W.3d
498, 503 (Tex. 2014). The factfinder is the sole arbiter when making determinations
regarding the credibility and demeanor of the witnesses. See id.
When reviewing the legal sufficiency of the evidence supporting an order
terminating parental rights, we look at all the evidence in the light most favorable to the
9
finding to determine whether a reasonable trier of fact could have formed a firm belief or
conviction as to the truth of the allegations sought to be established. See In re J.F.C.,
96 S.W.3d at 265–66. “To give appropriate deference to the factfinder’s conclusions
and the role of a court conducting a legal sufficiency review, looking at the evidence in
the light most favorable to the judgment means that a reviewing court must assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so.” Id. at 266. In other words, we will disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible. Id.
When reviewing the factual sufficiency of the evidence supporting a judgment of
termination, we determine “whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the [Department]’s
allegations.” In re C.H., 89 S.W.3d at 25. In conducting this review, we consider
whether the disputed evidence is such that a reasonable factfinder could not have
resolved the disputed evidence in favor of its finding. See In re J.F.C., 96 S.W.3d at
266. “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.” Id.
Analysis
We begin our analysis with the reminder that E.S. has not appealed the finding of
the trial court regarding any of the statutory predicate acts. This being said, we are
mindful that evidence proving one or more of the statutory predicate grounds for
10
termination can also be probative evidence that termination is in the best interest of the
children. See In re C.H., 89 S.W.3d at 28.
Turning to the evidence, we note that, by E.S.’s admissions during testimony, the
following are true:
1. E.S.continued to use methamphetamine during the pendency of the suit
to terminate her parental rights.
2. She was incarcerated at the time of her trial.
3. She was facing further charges at the time of the trial.
4. She had been the victim of a domestic assault from her boyfriend, Clay,
yet began seeing him again after she was released from jail.
5. She did not complete the service plan as agreed with the Department.
6. She did not have any definite plans for the children if she was
sentenced to further incarceration on any of the pending charges.
7. She had failed to properly supervise M.M.S.’s medical treatment for
M.M.S.’s chronic lung issues.
8. She failed to pick the children up after she was released from jail.
9. When not incarcerated during the pendency of the termination
proceeding, she was not gainfully employed.
We will use these factual matters in addressing the Holley factors to determine whether
termination is in the best interest of the children. See Holley v. Adams, 544 S.W.2d
367, 372 (Tex. 1976).
The Texas Supreme Court outlined a non-exhaustive set of factors to be used in
determining whether termination of the parent child relationship was in the best interest
of the children. See id. The factors are as follows: (1) the desires of the children; (2)
the emotional and physical needs of the children now and in the future; (3) the
emotional and physical danger to the children now and in the future; (4) the parenting
11
abilities of the parent seeking custody; (5) the programs available to assist the parent;
(6) the plans for the child by the parties seeking custody; (7) the stability of the home or
proposed placement; (8) the acts or omissions committed by the parent which may
indicate that the existing parent-child relationship is not a proper one; and (9) any
excuse for the acts or omissions committed by the parent. See id.; see also In re D.S.,
333 S.W.3d 379, 383–84 (Tex. App.—Amarillo 2011, no pet.). In applying the Holley
factors, “a trier of fact may measure a parent’s future conduct by his or her past
conduct.” In re D.S. 333 S.W.3d at 384. The evidence need not establish proof that all
of the Holley factors support the conclusion that termination is in the best interest of the
children and the absence of evidence about some factors does not preclude the
factfinder from reasonably forming a strong conviction that termination is in the
children’s best interest. See In re C.H., 89 S.W.3d at 27.
The finding that E.S. has knowingly placed or knowingly allowed the children to
remain in conditions or surroundings which endanger the physical or emotional well-
being of the children and engaging in conduct or knowingly placed the children with
persons who engaged in conduct which endangers the physical or emotional well-being
of the children supports the proposition that termination of the parent-child relationship
is in the best interest of the children under the second and third Holley factors. To this
we add the testimony of E.S. that she continued to use methamphetamine during the
pendency of this suit and that she, in fact, used methamphetamine around M.M.S. That
M.M.S. tested positive for methamphetamine is further proof of the endangerment of the
children. Thus, the second and third Holley factors strongly support the termination of
the parental rights.
12
Throughout the pendency of this matter E.S. has either been incarcerated or
moving from location to location. The record reflects that, since the Department took
possession of the children, E.S. has either been incarcerated or unemployed. E.S. has
lived with Clay during the pendency of the suit when she knew he was a
methamphetamine user. Clay committed an act of domestic violence against E.S., yet
after she made a complaint against him for this domestic violence, E.S. again began
living with him. This evidence supports the trial court’s decision to terminate the
parental rights under the fourth Holley factor, that is, the parental abilities of the parent
seeking custody.
As to the stability of the home of the parent seeking custody, the seventh Holley
factor, the evidence at the trial was that E.S. had a proposal to move the children to
Boyd, Texas, where E.S. believed she had employment or to go to a half-way house in
Amarillo, Texas. The problem with E.S.’s plans are multiple. First, no one associated
with the proposed move to Boyd, Texas, testified that such a move was actually a
realistic alternative. Second, if E.S. went to the half-way house in Amarillo, the children,
according to E.S.’s own testimony, could not live there. Finally, her proposals
completely failed to account for the fact that E.S. had additional charges pending
against her that had not been disposed of. E.S.’s solution for this was for the
Department to continue with managing conservatorship until such time as she could get
these pending matters resolved. No evidence was adduced as to how long this would
be.
On the other side of this equation was the testimony of the Department that the
children were in a foster care situation that specialized in special needs children.
13
Although there was no testimony that these foster parents were going to adopt the
children, such an alternative was still under consideration. Regardless, the children
were currently receiving the type of care that addressed their specialized needs. This
factor also supports the trial court’s decision that termination was in the best interest of
the children.
As to the eighth Holley factor, the acts or omissions of the parent that indicate
that the current parent-child relationship is not in the children’s best interest, the record
speaks for itself: continued use of methamphetamine, lack of judgment to protect the
children, pending criminal cases, and incarceration through most of the time the case
was pending. These acts and omissions support the trial court’s finding that termination
is in the best interest of these children.
In the final analysis, based upon the record before the Court, when we look at all
the evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction as to the truth of the
allegations sought to be established, the evidence is legally sufficient to support the trial
court’s judgment. See In re J.F.C., 96 S.W.3d at 265–66. Accordingly, the evidence is
legally sufficient and we overrule E.S.’s contention to the contrary.
When we review the evidence for factual sufficiency, that is whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction about
the truth of the Department’s allegations, we conclude that the evidence supports the
trial court’s determination. See In re C.H., 89 S.W.3d at 25. Accordingly, we find the
evidence sufficient to support the judgment of the trial court and we overrule E.S.’s
contention to the contrary.
14
We are mindful that E.S. presented testimony about the steps she had taken to
become a better parent. E.S. presented a number of different certificates for courses
that she had completed while incarcerated that dealt with making better decisions, how
to deal with drug addiction, and how to be a better parent. While she is commended for
her efforts, the fact that she has demonstrated a recent effort and, possibly, has, in fact,
had a recent turn-around in her behavior does not totally offset her past behavior. See
In re J.J., No. 07-13-0017-CV, 2013 Tex. App. LEXIS 11194, at *27 (Tex. App.—
Amarillo Aug. 29, 2013, no pet.) (mem. op.). This is especially true under the facts of
this case where the evidence shows that E.S. had an earlier conviction yet, when she
was released from prison, went back to the same conduct that led to her first
incarceration. The trial court was not required to believe that there has been a lasting
change in the parent’s attitude since her children were removed. See Pruitt v. D.F.P.S.,
No. 03-10-00089-CV, 2010 Tex. App. LEXIS 10272, at *27 (Tex. App.—Austin Dec. 23,
2010, no pet.) (mem. op.).
Conclusion
Having overruled E.S.’s issues regarding the legal and factual sufficiency of the
evidence to support the trial court’s best interest determination, we affirm the order of
the trial court terminating her parental rights to the children.
Mackey K. Hancock
Justice
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