in the Interest of C.B., a Child ( 2023 )

NO. 12-22-00208-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 321ST
IN THE INTEREST OF C.B.,
§ JUDICIAL DISTRICT COURT
A CHILD
§ SMITH COUNTY, TEXAS
OPINION
In seven issues, C.S.B. appeals the trial court’s order terminating his parental rights. We
affirm.
BACKGROUND
C.S.B. is the father of C.B., and A.L. is her mother. C.S.B. was C.B.’s primary
conservator, and A.L. had standard visitation rights. On October 21, 2020, the Texas Department
of Family and Protective Services (the Department) filed an original petition for protection of
C.B., for conservatorship, and for termination of C.S.B.’s parental rights. In the removal
affidavit, Lesley Hurley, a Department investigator, wrote that A.L., as well as C.S.B.’s father,
R.B., and sister, C.M., were concerned for C.S.B.’s mental health and C.B.’s safety while in his
care. Based on these concerns and C.S.B.’s uncooperativeness during the Department’s
investigation, the Department requested a writ of attachment to gain possession of C.B.
To facilitate the Department’s possession of C.B., the police surveilled C.S.B.’s home
until he and C.B. went to a gas station. When C.S.B. and C.B. exited the station, the police
arrested C.S.B. for interference with child custody, and Hurley took C.B. to the Children’s
Advocacy Center for an interview. After the interview, C.B. was released to A.L.’s custody.
C.S.B. remained in jail throughout the proceedings.
Following a bench trial, the trial court ordered the termination of C.S.B.’s parental rights
based on findings that clear and convincing evidence supports such termination under
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subsections (D) and (E) of Texas Family Code Section 161.001(b)(1) and such termination is in
C.B.’s best interest. A.L. was appointed sole managing conservator of C.B. This appeal
followed.
MOTION FOR CONTINUANCE
In C.S.B.’s first issue, he argues the trial court erred by denying his motion for
continuance based on a finding that he was not competent to stand trial in his criminal case. In
his second issue, he argues that by requiring him to proceed to trial in his termination case after
he was found not competent to stand criminal trial, the court violated his “federal, state, statutory
and fundamental rights and legal protections including his federal and 14th Amendment
substantive and due process rights, his Texas Constitution Article 1, Section 19 due process
rights and his fundamental due process rights.” In his seventh issue, he argues that by requiring
him to proceed to trial in his termination case after he was found not competent to stand criminal
trial, the trial court denied him fair procedure. We address these issues together.
Standard of Review and Applicable Law
A motion for continuance shall not be granted “except for sufficient cause supported by
affidavit, or by consent of the parties, or by operation of law.” TEX. R. CIV. P. 251. The denial of
a motion for continuance is reviewed under an abuse of discretion standard. Garner v. Fidelity
Bank, N.A., 244 S.W.3d 855, 858 (Tex. App.—Dallas 2008, no pet.). The denial will be reversed
only if the trial court’s action was arbitrary, unreasonable, or without reference to any guiding
rules and principles. Id. (citing BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 800
(Tex. 2002)).
Parental competency is not a prerequisite to proceeding to trial under the Texas Family
Code. See generally TEX. FAM. CODE ANN. §§ 161.001-161.210 (West 2022); see also In re J.P.-
L., 592 S.W.3d 559, 582 (Tex. App.—Fort Worth 2019, pet. denied). To the contrary, a parent’s
mental illness may serve as a basis for involuntary termination of parental rights. See TEX. FAM.
CODE ANN. § 161.003.
When the state moves to destroy weakened familial bonds, it must provide the parents
with fundamentally fair procedures. Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S. Ct. 1388,
71 L. Ed. 2d 599 (1982). At a minimum, due process requires notice and an opportunity to be
heard at a meaningful time and in a meaningful manner. In re R.M.T., 352 S.W.3d 12, 17 (Tex.
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App.—Texarkana 2011, no pet.). The process due in a situation is measured by a flexible
standard that depends on the practical requirements of the circumstances. Id. In determining the
due process required, we consider (1) the private interest affected, (2) the risk of erroneous
deprivation of that interest, and (3) the government’s interest. Mathews v. Eldridge, 424 U.S.
319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976).
Analysis
On April 11, 2022, the date set for the termination proceeding, C.S.B.’s attorney filed a
sworn, written motion requesting continuance of the matter until forty-five days after restoration
of his competency and a trial on his pending charges. In the motion, counsel acknowledged that
the case was in an extension and the requested continuance would result in mandatory dismissal
of the case on April 19. However, she argued that C.S.B.’s due process rights were denied
because he was incarcerated throughout the proceedings, preventing him from completing the
services required by the Department. Furthermore, he had not yet received competency
restoration treatment, which made trial preparation difficult. Counsel attached her own affidavit
stating that the facts in the motion were true and correct based on her personal knowledge.
After hearing the arguments of the parties, the trial court stated that its decision was
difficult, but ultimately, where the case faced imminent automatic dismissal, C.S.B.’s
incompetence could not override C.B.’s best interest and need for permanence. The court further
noted that it provided all possible safeguards to address C.S.B.’s constitutional rights under the
circumstances, including granting multiple continuances, appointing competent counsel who
asserted and argued his position, and appointing a guardian ad litem to address the competency
issue. Accordingly, the court denied the motion.
To determine whether the trial court violated C.S.B.’s due process rights by denying his
motion for continuance and proceeding to a termination trial without a showing of competence to
stand criminal trial, we consider the Mathews factors. See R.M.T., 352 S.W.3d at 20. Concerning
the private interests affected by the court’s decision, both the parent’s and child’s interests must
be considered. See In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). A parent’s right to maintain
custody and raise his child is an interest far more precious than any property right. Id. Thus,
C.S.B.’s interest weighs heavily in favor of strong procedural protections. See R.M.T., 352
S.W.3d at 20.
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However, children have a strong interest in a prompt final decision on termination. Id. A
child’s emotional and physical interests must not be sacrificed to preserve the parent-child
relationship. Id. When a parent’s interests conflict with a child’s, the child’s best interest
prevails. Id. at 21. Therefore, although C.S.B.’s parental rights are a compelling private interest,
C.B.’s competing private interest favors proceeding to trial despite C.S.B.’s purported
incompetency.
Concerning the state’s interest, the family code tasks the Department with providing a
“safe, stable, and nonviolent environment for the child.” TEX. FAM. CODE ANN. § 153.001(a)(2)
(West 2014). It further tasks the Department with resolving termination and conservatorship
issues within a fixed time. See id. 263.401 (West Supp. 2022). The Department has an interest in
a final decision that is not unduly prolonged with negative psychological effects on the child left
in limbo. See R.M.T., 352 S.W.3d at 22.
C.S.B. filed a motion for continuance on the same day the case proceeded to trial—April
11. The dismissal date was April 19. C.S.B. presented no evidence that another trial date was
available before the dismissal date or that he could be treated and regain competency before the
dismissal date. Because C.S.B. had already received one dismissal extension in October 2021,
the family code did not allow for further extensions. See TEX. FAM. CODE ANN. § 263.401(b). A
dismissal is self-executing and does not depend on a party’s filing a motion or the court’s taking
any action. See id. § 263.401(a). When such a dismissal date is imminent, the state’s interest in
conducting the termination proceeding is urgent. See R.M.T., 352 S.W.3d at 22. For these
reasons, this factor weighs in favor of proceeding to trial.
Concerning the risk of erroneous deprivation of the parent-child relationship, although
parental competency hearings are not required in termination proceedings, other procedures may
be used to reduce the risk of erroneous deprivation. Id. The family code provides for the
appointment of an attorney ad litem for a parent who is incapacitated or alleged to be unable to
provide for their child because of mental illness. TEX. FAM. CODE ANN. §§ 161.003(b), 107.010
(West 2019). The code also provides that grounds for termination must be proved by clear and
convincing evidence. Id. § 161.001(b). Finally, appellate courts must strictly scrutinize
termination decisions. R.M.T., 352 S.W.3d at 22.
Here, C.S.B. was competently represented in the termination proceeding by his attorney
ad litem. He was further provided a court-appointed guardian ad litem. Given that C.S.B. was
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provided with the family code’s constitutional safeguards, we conclude that the risk of erroneous
deprivation was minimal. See id. at 23. After considering the relevant factors, we conclude that
C.S.B.’s due process rights were not violated when the trial court denied his motion for
continuance and proceeded to the termination trial despite his being found incompetent to stand
criminal trial. Accordingly, we overrule his first, second, and seventh issues.
TERMINATION OF PARENTAL RIGHTS
In C.S.B.’s third issue, he argues that the trial court erred by terminating his parental
rights. In his fourth issue, he argues that there is no or insufficient evidence to support the
termination of his parental rights. In his fifth issue, he argues there is no or insufficient evidence
to support a finding that termination of his parental rights is in C.B.’s best interest.
Standard of Review and Applicable Law
Involuntary termination of parental rights embodies fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.—Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.—Texarkana 1995, writ
denied). Because a termination action “permanently sunders “the bonds between a parent and
child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.
1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.—El Paso 1998, no pet.).
Section 161.001 of the family code permits a court to order termination of parental rights
if two elements are established. TEX. FAM. CODE ANN. § 161.001; In re J.M.T., 39 S.W.3d 234,
237 (Tex App.—Waco 1999, no pet.). First, the parent must have engaged in any one of the acts
or omissions itemized in the second subsection of the statute. TEX. FAM. CODE ANN. §
161.001(b)(1); Green v. Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d 213, 219
(Tex. App.—El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, termination must
be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.M.T., 39
S.W.3d at 237. Both elements must be established by clear and convincing evidence, and proof
of one element does not alleviate the petitioner’s burden of proving the other. TEX. FAM. CODE
ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237.
The clear and convincing standard for termination of parental rights is both
constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911
S.W.2d at 439. Clear and convincing evidence means “the measure of degree of proof that will
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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 ANN. § 101.007 (West 2019). The burden of proof is
upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.
When confronted with both a legal and factual sufficiency challenge, an appellate court
must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619
S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.—Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must 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 that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable
fact finder could do so and disregard all evidence that a reasonable fact finder could have
disbelieved or found incredible. Id.The appropriate standard for reviewing a factual sufficiency challenge to the termination
findings is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). In determining whether the evidence presented to the fact finder has met this standard, an
appellate court considers all the evidence in the record, both that in support of and contrary to the
trial court’s findings. Id. at 27-29. Further, an appellate court should consider whether disputed
evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in
favor of its finding. In re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the
credibility of the witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom,
965 S.W.2d 575, 580 (Tex. App.—Houston [1st Dist.] 1997, pet. denied).
Termination under Sections 161.001(b)(1)(D) and (E)
The trial court may order termination of the parent-child relationship if it finds by clear
and convincing evidence that 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 ANN. § 161.001(b)(1)(D). Subsection (D) addresses the child’s
surroundings and environment. In re N.R., 101 S.W.3d 771, 775-76 (Tex. App.—Texarkana
2003, no pet.). The child’s “environment” refers to the suitability of the child’s living conditions
as well as the conduct of parents or others in the home. In re S.R., 452 S.W.3d 351, 360 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied). The relevant time frame to determine whether
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there is clear and convincing evidence of endangerment is before the child was removed. Ybarra
v. Tex. Dep’t of Human Servs., 869 S.W.2d 574, 577 (Tex. App.—Corpus Christi 1993, no
pet.). Further, subsection (D) permits termination based on a single act or omission. In re R.D.,
955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).
The trial court may order termination of the parent-child relationship if it finds by clear
and convincing evidence that the parent engaged in conduct, or knowingly placed the child with
persons who engaged in conduct, that endangers the physical or emotional well-being of the
child. TEX. FAM. CODE ANN. § 161.001(b)(1)(E). “Endanger” means to expose to loss or injury or
to jeopardize. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). It is not
necessary that the conduct be directed at the child or that the child actually suffers injury. Boyd,
727 S.W.3d at 533. Termination under subsection (E) must be based on more than a single act or
omission. In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied).
Subsection (E) requires us to look at the parent’s conduct alone, including actions, omissions, or
the parent’s failure to act. In re D.J., 100 S.W.3d 658, 662 (Tex. App.—Dallas 2003, pet.
denied). Scienter is not required for an appellant’s own acts under Section 161.001(b)(1)(E),
although it is required when a parent places the child with others who engage in endangering
acts. In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied),
overruled on other grounds, In re L.C.L., 599 S.W.3d 79, 85-86 (Tex. App.—Houston [14th
Dist.] 2020, pet. denied).
Generally, conduct that subjects a child to a life of uncertainty and instability endangers
the physical and emotional well-being of the child. In re R.W., 129 S.W.3d 732, 739 (Tex.
App.—Fort Worth 2004, pet. denied). Though imprisonment of a parent is insufficient, standing
alone, to constitute “engaging in conduct which endangers the emotional or physical well-being
of the child,” it is a factor to consider on the issue of endangerment. See Boyd, 727 S.W.2d at
533-35. Because it exposes the child to the possibility that the parent may be impaired or
imprisoned, illegal drug use may support termination under subsection (E). Walker v. Tex. Dep’t
of Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex. App—Houston [1st Dist.] 2009,
pet. denied). A fact finder can consider the history of abuse between the parents for purposes of
subsection (E), even if the children were not always present. In re Z.M., 456 S.W.3d 677, 686
(Tex. App.—Texarkana 2015, no pet.).
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In this case, the evidence shows that C.S.B.’s close family members became concerned
for his mental health a few years before this case was opened when he began to behave violently
and show signs of delusions and paranoia. In May 2020, R.B. asked A.L. to exercise her
extended summer visitation with C.B. so he could get C.S.B. some help. Early in the visitation,
C.B. began to cry and told A.L. she did not want to go back home. When asked why, C.B. stated
that C.S.B. kept locking her in her bedroom and replaced her bedroom doorknob with a “flat
doorknob.” A CPS case was opened in June and closed with C.B. in A.L.’s possession and A.L.
agreeing to file for a custody modification.
After C.B.’s first day of school, both A.L. and C.S.B. arrived to pick her up. She entered
A.L.’s vehicle, but A.L. could not immediately leave because she was blocked by other vehicles.
C.S.B. began yelling and insisting that C.B. leave with him, and school officials compelled her to
do so. C.B. was scared, upset, crying, and did not want to go with C.S.B. Thereafter, C.S.B.
enrolled C.B. in online learning and did not allow A.L. her visitation rights. Sporadically, C.S.B.
allowed C.B. to FaceTime A.L., but their interaction was strictly monitored.
Sometimes C.B. used C.S.B.’s phone to call A.L. when C.S.B. was asleep. C.S.B.’s
words and actions scared C.B. She could not leave the home because he installed several locks
on the inside of the front and back doors, including a padlock on the back door, and kept the keys
on his person. Sometimes C.S.B. screamed at the top of his lungs at imaginary people while
looking at the ceiling, sometimes for an entire day. Other times he tried to harass C.B. into
admitting that a multitude of apparently imaginary people were controlling her. A.L. contacted
law enforcement, but C.S.B. refused to allow her to take C.B. for visitation even in their
presence.
In October 2020, the Department opened a second case. Hurley, accompanied by law
enforcement because of the mental health concerns, attempted to contact C.S.B. at his home. At
first, there was no response. Hurley contacted R.B. and C.M., who corroborated the intake
information. Eventually, C.S.B. opened the door after a deputy knocked. He appeared fine and
normal. Hurley informed him that she was there to talk about mental health and “possible
allegations of sexual abuse by a friend of his.” C.S.B. refused to allow Hurley to take C.B. to the
Children’s Advocacy Center for an interview, stating that he believed A.L., R.B., and C.S.B.’s
ex-girlfriend were involved. He allowed Hurley to view C.B. through the screen door. C.B.’s
arms were crossed and she looked scared and shaky. Hurley saw several firearms propped behind
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her on the furniture. She also noticed bars on C.B.’s bedroom windows and a very tall fence with
barbed wire around it.
Based on the visit, Hurley believed that C.B. was in imminent danger. She was concerned
about C.B.’s fearfulness and inability to escape the house in case of a fire. C.S.B.’s behavior
caused further concern about possible drug abuse. On October 21, Hurley obtained a removal
order and writ of attachment. C.S.B. refused to open the door when the Department attempted to
serve him. Deputy Tina Glover, a sheriff’s office process server, also attempted to personally
contact him to no avail. After many such attempts, she served the citation by securely posting it
on his door. When Glover drove by the house the next day, the citation was gone.
One night while law enforcement was watching the house, C.S.B. and C.B. went to a gas
station. When they came out, law enforcement took C.S.B. to the ground and struggled to place
him in hand restraints. C.S.B. appeared to be trying to reach his waistband. The detectives
discovered two handguns and two knives on his person. C.B. was so frightened by the incident
that she lost bladder control. She was taken to the Children’s Advocacy Center and interviewed.
C.B. also testified at trial.
According to C.B., she loves C.S.B. but is afraid of him and does not want to be alone
with him. When she was about eight years old, he began behaving strangely. At first, he looked
at the ceiling and whispered. Eventually, the whispering became yelling and sometimes lasted an
entire day. C.S.B. believed that people teleported into the home to steal from him, lasered him,
microwaved his elbow, and telepathically “dropped drugs” on him. A.L. kept C.B. for a few
months to keep her safe, but school officials forced her to go with C.S.B. She cried for two days
wanting to see A.L.
A few weeks later, C.S.B. began saying that over thirty-five people, most of whom C.B.
did not know, were controlling C.B. He said that someone named Gretchen was keeping C.B.
awake at night and controlling what she said and did. He said that his ex-girlfriend controlled
C.B. to wiggle her mouth when she was scared. When C.B. sneezed, C.S.B. asked who told her
to sneeze. When she denied being told to sneeze and cried, C.S.B. ignored her cries and called
her a liar. Sometimes C.S.B. slept all day. C.B. woke him because she wanted to go outside and
play. He threatened to lock her in her room, but she was so bored that she persisted. C.S.B.
became angry and asked, “Who’s controlling her?” C.S.B. did not allow C.B.’s friends to visit
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because he thought that the friends would control him and C.B. or the people controlling C.B.
would also control her friends. When the dog barked, he said, “Stop controlling the dog.”
C.B. told C.S.B. many times that no one was controlling her. C.S.B. responded by
removing everything from her room except a bed and a rug. He removed her doorknob, installed
a lock that locked from the outside, bolted her window shut, and installed bars on it. He said that
he would continue to lock C.B. in the bedroom unless she said people were controlling her.
Sometimes C.S.B. spanked her on the bottom and legs with a belt or flyswatter when she denied
being controlled. One spanking left a welt. A couple of times C.S.B. threatened to shoot A.L. in
the head. These events made C.B. feel sad and scared.
After C.S.B. was arrested, R.B. hired a locksmith to open C.S.B.’s safe to remove his
guns for safety and found a crystalline substance he believed to be methamphetamine and a glass
pipe with white residue inside. After performing the evaluation finding C.S.B. incompetent, Dr.
Timothy Proctor diagnosed him with unspecified schizophrenia spectrum and other psychotic
disorder, amphetamine use disorder, and history of methamphetamine-induced psychotic
disorder. He believed C.S.B.’s psychosis started with his methamphetamine use.
On appeal, C.S.B. argues that the evidence is insufficient because “mental illness is not
necessarily grounds to terminate parental rights.” This argument fails because the trial court
found termination grounds under subsections (D) and (E), not the statute that allows for
termination because of mental illness. See TEX. FAM. CODE ANN. § 161.003.
C.S.B. further argues that the evidence is insufficient to support termination under
Section 161.001(b)(1)(E) because it does not show his behavior was a voluntary, deliberate, and
conscious course of conduct. He apparently contends that the finding of incompetence to stand
criminal trial shows his behavior was not a voluntary, deliberate, and conscious course of
conduct. However, scienter is not required for a parent’s own acts under Section
161.001(b)(1)(E); scienter is required under subsection (E) only when the parent places the child
with others who engage in endangering acts. See In re U.P., 105 S.W.3d at 236. Because
C.S.B.’s own acts are at issue here, the Department was not required to prove scienter. See id.;
TEX. FAM. CODE ANN. § 161.001(b)(1)(E). C.S.B. makes no argument pertaining to termination
under subsection (D).
Reviewing the evidence under the appropriate standards, we conclude that a reasonable
fact finder could have formed a firm belief or conviction that termination of C.S.B.’s parental
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rights is warranted under subsections (D) and (E) of Texas Family Code 161.001(b)(1). See TEX.
R. APP. P. 47.1. Accordingly, we overrule C.S.B.’s third and fourth issues.
Best Interest of the Child
In determining the best interest of the child, a number of factors have been considered,
including (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; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the
acts or omissions of the parent that may indicate the existing parent-child relationship is not a
proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976).
The family code also provides a list of factors that we will consider in conjunction with
the Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West 2019). These include (1) the
child’s age and physical and mental vulnerabilities; (2) the magnitude, frequency, and
circumstances of the harm to the child; (3) the results of psychiatric, psychological, or
developmental evaluations of the child, the child’s parents, other family members, or others who
have access to the child’s home; (4) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home; (5) the willingness and ability of the
child’s family to seek, accept, and complete counseling services and cooperate with and facilitate
an appropriate agency’s close supervision; (6) the willingness and ability of the child’s family to
effect positive environmental and personal changes in a reasonable period of time; (7) whether
the child’s family demonstrates adequate parenting skills; and (8) whether an adequate social
support system consisting of an extended family and friends is available to the child. See id.
263.307(b)(1), (3), (6), (8), (10), (11), (12), (13).
The evidence need not prove all statutory and Holley factors to show that termination of
parental rights is in a child’s best interest. See Holley, 544 S.W.2d at 372; In re J.I.T.P., 99
S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no pet.). In other words, the best
interest of the child does not require proof of any unique set of factors nor limit proof to any
specific factors. In re D.M., 58 S.W.3d 801, 815 (Tex. App.—Fort Worth 2001, no pet.).
Undisputed evidence of just one factor may be sufficient in a particular case to support a finding
that termination is in the child’s best interest. In re M.R.J.M., 280 S.W.3d 494, 507 (Tex.
11
App.—Fort Worth 2009, no pet.). But the presence of scant evidence relevant to each factor will
not support such a finding. Id. Evidence supporting termination of parental rights is also
probative in determining whether termination is in the best interest of the child. See In re C.H.,
89 S.W.3d at 28-29.
Analysis
The evidence at trial showed that C.B. was eleven years old at the time of trial. C.S.B.
remained incarcerated since his arrest and was awaiting competency restoration services before
he could be tried on charges of interference with child custody, a state jail felony carrying a
punishment of confinement for up to two years, and possession of a controlled substance, a third-
degree felony carrying a punishment of imprisonment for up to ten years.
After evaluating C.S.B.’s mental health, Dr. Proctor considers him to be severely
mentally ill. Delusional beliefs like his are often treatable, but they are the most difficult
psychotic symptom to treat and often the last impacted. Although chronic psychotic symptoms
may be managed through medication and counseling, such treatment does not cure the condition.
A large portion of patients who follow their treatment regimens achieve some normalcy in their
living experiences. It is possible for a person with a psychotic illness to be a good parent. Most
defendants found incompetent are ultimately restored. However, of those who are not restored,
persistence of delusions is one of the most common reasons for the failure. Competence to stand
trial does not equate to parental ability. For a patient to engage in treatment, he must be willing
to trust and interact with people. Dr. Proctor further explained that someone who engaged in the
behaviors that C.S.B. engaged in would be more difficult to treat than someone who did not.
C.S.B. was adamant that he has no mental problems.
C.B. has lived with A.L. since C.S.B.’s arrest. She feels safe in A.L.’s home and loves
being with her. A.L.’s fiancé lives in the home and has been a big part of C.B.’s life since she
was four years old. He is willing to be her long-term father figure and possibly adopt her. C.B.
attends school and sees her friends and family, including her paternal family. She saw a
Children’s Advocacy Center counselor, Lenore Strickland, throughout the case and can continue
seeing her. Strickland provides C.B. trauma-focused cognitive behavioral therapy. A.L. helps
with C.B.’s emotional self-regulation at home when she experiences a triggering event. C.B. will
discover triggers at each developmental stage and need support. A.L. completed parenting
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classes, a psychological evaluation, and random drug testing. The Department has no concerns
with her.
Reviewing the evidence under the appropriate standards, we conclude that a reasonable
trier of fact could have formed a firm belief or conviction that termination of C.S.B.’s parental
rights was in C.B.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2). Accordingly, we
overrule C.S.B.’s fifth issue.
REASONABLE EFFORTS TO RETURN CHILD
In C.S.B.’s sixth issue, he argues that the trial court erred “because the Department of
Family and Protective Services failed to meet their statutory duty and their constitutional duty to
protect the rights of parents and to make reasonable efforts to return a child to the parents.”
However, Section 161.001 does not require the Department to make any efforts to return the
child to the parent under these circumstances. See id. § 161.001(b)(1)(E); but see id.
§ 161.001(b)(1)(N) (if parent has constructively abandoned child who has been in managing
conservatorship of Department for not less than six months, Department must have made
reasonable efforts to return child to parent before court may order termination of parent-child
relationship). Accordingly, we overrule Appellant’s sixth issue.
DISPOSITION
Having overruled Appellant’s first through seventh issues, we affirm the trial court’s
judgment.
GREG NEELEY
Justice
Opinion delivered January 19, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JANUARY 19, 2023
NO. 12-22-00208-CV
IN THE INTEREST OF C. B., A CHILD
Appeal from the 321st District Court
of Smith County, Texas (Tr.Ct.No. 20-2367-D)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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