in the Interest of L.D.W., a Child ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00169-CV
IN THE INTEREST OF L.D.W., A CHILD
From the County Court at Law
Bosque County, Texas
Trial Court No. CV17164
MEMORANDUM OPINION
Heather S. appeals from a judgment that terminated the parent-child relationship
between her and her daughter, L.D.W. In six issues, Heather complains that the evidence
was legally and factually insufficient for the trial court to have found that she (1)
voluntarily left the child alone or in the possession of another without providing
adequate support for the child and remained away for a period of at least six (6) months
pursuant to Section 161.001(b)(1)(C) of the Family Code; (2) knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which endangered
the physical or emotional well-being of the child pursuant to Section 161.001(b)(1)(D); (3)
constructively abandoned the child pursuant to Section 161.001(b)(1)(N); (4) used a
controlled substance in a manner that endangered the health or safety of the child
pursuant to Section 161.001(b)(1)(P); (5) knowingly engaged in criminal conduct that has
resulted in her conviction of an offense and confinement or imprisonment and inability
to care for the child for not less than two years from the date of the filing of the petition
pursuant to Section 161.001(b)(1)(Q); and (6) that termination was in the best interest of
the child. Because we find no reversible error, we affirm the judgment of the trial court.
STANDARD OF REVIEW—LEGAL AND FACTUAL SUFFICIENCY
The standards of review for legal and factual sufficiency in termination cases are
well-established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re
C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In reviewing the legal sufficiency
of the evidence, we view all the evidence in the light most favorable to the finding to
determine whether a trier of fact could reasonably have formed a firm belief or conviction
about the truth of the Department's allegations. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005);
J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed evidence that does
not support the finding. J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of
the evidence, we must give due consideration to evidence that the factfinder could
reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. We must
consider the disputed evidence and determine whether a reasonable factfinder could
have resolved that evidence in favor of the finding. Id. If the disputed evidence is so
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significant that a factfinder could not reasonably have formed a firm belief or conviction,
the evidence is factually insufficient. Id.
In assessing the sufficiency of the evidence under the foregoing standards, we
cannot weigh witness-credibility issues that depend on the appearance and demeanor of
the witnesses, for that is the factfinder's exclusive province. In re J.P.B., 180 S.W.3d at 573-
74. Instead, we defer to the factfinder's credibility determinations as long as they are not
unreasonable. Id.
SECTION 161.001(b)(1)(D)
In her second issue, Heather contends that the evidence is legally and factually
insufficient to support the termination of her parental rights pursuant to Section
161.001(b)(1)(D) of the Family Code, which authorizes the termination of parental rights
when a parent "knowingly placed or knowingly allowed a child to remain in conditions
or surroundings that endangered the child's physical or emotional well-being." TEX. FAM.
CODE ANN. § 161.001(b)(1)(D).
A child is endangered when the environment creates a potential for danger that
the parent is aware of but disregards. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). In reviewing the sufficiency of the evidence pursuant
to Section 161.001(b)(1)(D), "we must examine the time before the [child]'s removal to
determine whether the environment [of the home] posed a danger to the child's physical
or emotional well-being." In re L.C., 145 S.W.3d 790, 795 (Tex. App.—Texarkana 2004, no
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pet.). Subsection (D) permits termination of parental rights based on a single act or
omission by the parent. In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet.
denied). Additionally, "illegal drug use by a parent likewise supports the conclusion that
the children's surroundings endanger their physical or emotional well-being." In re L.E.S.,
471 S.W.3d 915, 925 (Tex. App.—Texarkana 2005, no pet.) (citing In re J.T.G., 121 S.W.3d
117, 125 (Tex. App.—Fort Worth 2003, no pet.).
Heather left L.D.W. in the possession of L.D.W.’s father, David, who Heather knew
had a history of methamphetamine use, although Heather claimed to not know that he
was using at the time she left L.D.W. David had taken L.D.W. to the residence of another
known drug user although Heather claimed that she did not know he would take the
child there. The caseworker testified that David initially made a referral against Heather
due to concerns about Heather's drug usage but would not take a drug test himself when
requested by the Department. It was determined that both David and Heather were drug
users which led to the placement of L.D.W. with David's sister and brother-in-law. The
caseworker testified that both Heather and David had an extensive history with the
Department.
Heather had been convicted for possession of a controlled substance in a
correctional facility and escape and was incarcerated throughout the case. Heather
admitted to being a drug user since the age of 15, and had voluntarily relinquished her
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parental rights to her three other children due to drug use after the Department had
removed them from her.
In our evidentiary review of this issue, we have found no evidentiary disputes
which could not reasonably be resolved in favor of termination by a reasonable factfinder.
We also find no factfinder determinations based on credibility of witnesses that we
conclude were unreasonable. As to this issue, we conclude a reasonable factfinder could
have found the evidence clear and convincing in support of termination. In light of the
entire record of the termination hearing, we conclude the evidence allowed the factfinder
reasonably to form a firm belief or conviction supporting each element of proof
supporting termination of Heather's parental rights pursuant to Section 161.001(b)(1)(D).
We find that the evidence was legally and factually sufficient for the trial court to have
found that by leaving L.D.W. with David, a known drug user, Heather knew of a risk but
disregarded it and by doing so, "knowingly placed or knowingly allowed a child to
remain in conditions or surroundings that endangered the child's physical or emotional
well-being." We overrule issue two. Because the evidence as to only one predicate
ground must be sufficient to support the judgment, we do not need to address issues one,
three, four, or five. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
BEST INTEREST
In her sixth issue, Heather complains that the evidence was legally and factually
insufficient for the trial court to have found that termination of the parent-child
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relationship was in the best interest of L.D.W. There is a strong presumption that keeping
a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006). Nonexclusive factors that the trier of fact in a termination case may also use in
determining the best interest of the child include the following: (A) the desires of the
child; (B) the emotional and physical needs of the child now and in the future; (C) the
emotional and physical danger to the child now and in the future; (D) the parental
abilities of the individuals seeking custody; (E) the programs available to assist these
individuals to promote the best interest of the child; (F) the plans for the child by these
individuals or by the agency seeking custody; (G) the stability of the home or proposed
placement; (H) the acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions
of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not
exhaustive, and some listed factors may be inapplicable to some cases. C.H., 89 S.W.3d
at 27. Furthermore, undisputed evidence of just one factor may be sufficient in a
particular case to support a finding that termination is in the best interest of the child. Id.
On the other hand, the presence of scant evidence relevant to each factor will not support
such a finding. Id.
L.D.W. was in a placement with David's sister and brother-in-law, which was
described as "a loving home." It was the plan for L.D.W. to remain there, where she was
very happy and well cared for, according to the CASA worker who recommended
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termination as being in L.D.W.'s best interest. L.D.W. was approximately seventeen
months old at the time of the final hearing. The caseworker testified that she had no
concerns about L.D.W. in her current placement and that she was doing exceptionally
well and was very happy. L.D.W. had not seen her mother in the year the case was
pending. When a child is too young to express her desires, the factfinder may consider
that the child is well cared for in her current placement and has spent minimal time with
a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied); In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Prior to Heather's decision to leave L.D.W. with David, who she knew was a drug
user, Heather had been living with a man who she planned to marry upon her release
from incarceration. The man testified that he wasn't sure but "had my assumptions" that
Heather had been using methamphetamine prior to her arrest. Heather tested positive
for methamphetamine when she was arrested and admitted to having used drugs since
the age of 15. Heather had voluntarily relinquished her parental rights to her other three
children who had been removed from her due to her drug use. A parent's drug use
supports a finding that termination of parental rights is in the best interest of the child,
and the factfinder can afford great weight to the significant factor of drug-related
conduct. See In re L.G.R., 498 S.W.3d at 204.
Heather was incarcerated at the time of trial and at the earliest, would be released
approximately five or six months after the final hearing. She had sent cards and a gift
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but no other financial support to L.D.W. Heather wanted L.D.W. to be placed with her
mother where her other three children had been placed, but the Department had not
considered her mother for placement because L.D.W. had already been placed with a
relative.
Based on our review of the record in conjunction with the Holley factors listed
above, we find that the evidence was both legally and factually sufficient for the trial
court to have found that termination of the parent-child relationship was in the best
interest of L.D.W. We overrule issue six.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 29, 2018
[CV06]
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