in the Interest of I.N.B. ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00260-CV
________________
IN THE INTEREST OF I.N.B.
________________________________________________________________________
On Appeal from the County Court at Law
Orange County, Texas
Trial Cause No. C210257-D
________________________________________________________________________
OPINION
Following a bench trial, Z.P. (“Father”) appeals the trial court’s order
terminating his parental rights to his minor child, I.N.B, based on Texas Family Code
subsection 161.001(b)(1)(Q) and a finding that termination was in I.N.B.’s best
interest. 1, 2 See Tex. Fam. Code Ann. § 161.001(b)(1)(Q), (2). In two issues, Father
1
In parental rights termination cases, to protect the identity of the minors, we
refer to the children by a pseudonym or initials and family members by their
relationships to the children. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App.
P. 9.8(b)(2).
2
The Department also sought to terminate C.B.’s (“Mother”) rights, and the
trial court found that evidence supported predicate grounds D, E, and P; however,
the trial court found that it was not in I.N.B.’s best interest to terminate her rights
1
challenges the legal and factual sufficiency of the evidence supporting predicate
ground Q and the trial court’s best interest finding. Also regarding the best interest
finding, Father contends that the Department’s failure to comply with the trial
court’s order to produce records violated his due process rights and hampered his
efforts to comply with the requirements to avoid termination. We affirm the trial
court’s judgment terminating Father’s parental rights to I.N.B.
BACKGROUND
In April 2021, the Department of Family and Protective Services (“the
Department”) filed its Original Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship naming I.N.B. as the subject of the suit and seeking to terminate Mother
and Father’s parental rights. The Petition was supported by Department Investigator
Tracey Marks’s Affidavit of Removal. The Department outlined Mother’s history
with the Department involving I.N.B.’s older siblings. The Affidavit also described
Mother and I.N.B.’s prior history with the Department, specifically, that they both
tested positive for amphetamines at I.N.B.’s birth, and Mother admitted to
methamphetamine use throughout her pregnancy with I.N.B. The Affidavit
explained that I.N.B. suffered severe withdrawals after birth that required treatment
and named the Department as I.N.B.’s conservator. See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E), (P), (2). Mother is not a party to this appeal.
2
with phenobarbital, and I.N.B. was removed but subsequently returned to Mother in
late 2018 after she “worked services.”
In the “Facts Necessitating Removal” portion of the Affidavit, Marks averred
that in March 2021, Child Protective Services (CPS) received a neglectful
supervision report of I.N.B. by Mother and that Mother may be using
methamphetamines. Despite Mother’s initial denial, when the investigator contacted
her, Mother’s urinalysis came back “negative dilute” and a subsequent hair follicle
test was positive for methamphetamines. I.N.B. was removed in April 2021.
The record established that Father was not incarcerated during the 2018 case
but did not participate in services or DNA testing. At the time of the 2021 removal,
Father was incarcerated for multiple felony convictions that occurred in May 2019,
including burglary and possession of a controlled substance. The felony possession
of a controlled substance conviction resulted in a six-year sentence. Although
paternity was not established by DNA testing until February 2022, the record
established that Father knew in 2017 when Mother was pregnant that I.N.B. was his
child.
DEPARTMENT’S RECORDS
In July 2021, the trial court signed an Order Setting Deadlines. This Order
required the Department to produce redacted records and distribute them to all
parties/counsel by August 27, 2021, and stated that “the Department shall produce
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UPDATED, supplemental, REDACTED RECORDS and distribute same to all
counsel of record on a monthly basis due on or before the 20th day of each month
hereafter.” In March 2022, Father filed a pretrial Motion to Dismiss with Prejudice
and Motion for Sanctions complaining about the Department’s failure to timely
comply with the trial court’s order to produce redacted records. In April, Father filed
an Amended Motion to Dismiss with Prejudice and for Sanctions complaining of the
Department’s failure to produce records in compliance with the trial court’s order.
On April 25, 2022, trial court conducted a pretrial evidentiary hearing 3
addressing the Department’s records, alleged failure to timely produce them, and
Father’s complaints that the records produced were missing certain items, including
text messages, phone call notes, home studies, and psychological evaluations.
During the pretrial evidentiary hearing, the trial court heard testimony from a
Department supervisor and caseworker regarding the production of records. The
supervisor described the various dates they produced updated documents, and given
some of the complaints, the Department requested the entire file be redacted again.
The parties clarified that the entire file was provided again (re-redacted) to the D.A.’s
file at the end of March 2022, then the Department sent the last of the records to the
D.A.’s office on April 7, 2022. However, the parents represented the last date they
received redacted records was December 13, 2021. The supervisor explained that
3
Following the hearing, trial testimony commenced later that afternoon.
4
they provided a disc of these redacted records to the D.A.’s office and believed the
D.A.’s office would upload them to a portal accessible to all parties, but the D.A.’s
office did not do so as it thought the supervisor was providing discs to all parties.
She further explained the failure to produce the updated set of redacted records in
their entirety was the result of a miscommunication discovered the morning of the
pretrial evidentiary hearing.
During the pretrial evidentiary hearing, the trial court explained it set aside
the Department’s monthly deadline to supplement the records by the 20th “as a
general practice” at an earlier hearing, because the local office could not control how
quickly the records were redacted in Austin; however, she did not absolve the
Department of producing the records. When the pretrial evidentiary hearing
concluded, the trial court gave the parents the option of 1) postponing the trial to
ensure any issues with the Department’s records were sorted out, and the parents had
time to review them all, or 2) go forward with trial, and the Department would only
be able to proceed with the records timely provided by the Texas Rules of Civil
Procedure or included in the redacted records produced on December 13, 2021,
unless they could get them in another way, at which point she would consider
objections and rule based on what she heard. Mother chose to proceed with trial, but
they could not reach Father, who had chosen to participate via Zoom rather than in
person.
5
After all parties rested but prior to closing arguments, Father’s counsel
attempted to make a proffer or bill of exception of a thumb drive containing all
records received from the Department to show what documents were missing. The
trial court explained that admitting the records in their entirety did not show what
was missing, instead, counsel should offer the records she did not get before trial.
The trial court allowed the proffer but would not admit them.
TRIAL EVIDENCE 4
Removal Caseworker Lana Murphy’s Testimony
Lana Murphy testified that she was the removal caseworker for I.N.B. Murphy
explained that she first met with Mother on April 20, 2021, and she completed the
placement paperwork with fictive kin, T.D., who was Mother’s ex-husband and the
biological father of I.N.B.’s siblings. When Murphy met with Mother, the removal
had already occurred, and Mother told the initial investigator that she wanted I.N.B.
placed with T.D., so that investigator did what she could to place the child there.
Murphy then visited Father in jail on April 22, 2021, where she presented him
with a Child Caregiver Resource Form to list potential placements for I.N.B. Murphy
explained that Mother had already identified T.D., so she signed a blank form, but
Father refused to sign anything and said he did not want to be involved.
In this section, we limit our discussion to the evidence relevant to Father’s
4
complaints on appeal.
6
Murphy testified that the investigating caseworker would have conducted a
preliminary home study to insure it was appropriate, which includes checking CPS,
criminal history, and collateral contacts. Murphy explained that once the child is
placed, a contractor would conduct a formal home study, which would then be
presented to CPS for approval. If the child is placed there, they should have
requested the formal home study before the adversary hearing. Murphy also
described the process of requesting home studies.
Department Investigator Tracey Marks’s Testimony
Marks testified that she is a CPS investigator and was assigned to I.N.B.’s
case beginning in March 2021. Marks testified they received an intake of neglectful
supervision by Mother, specifically that Mother was using methamphetamines.
Mother told Marks she had not used any drugs since I.N.B. was returned to her
custody following the 2018 case, but Mother’s urinalysis came back “negative
dilute,” so they had her do a hair follicle test, which was positive. Marks explained
that when they requested Mother do the hair follicle test, she informed them it would
be positive for methamphetamines. Marks testified to the family’s CPS history,
which included prior intakes of drug use by Mother in 2010, 2016, and 2018. The
2016 and 2018 intakes involved her children testing positive at birth. Marks testified
that in 2018, Mother successfully worked her services, and I.N.B. was returned to
her, but two years later, she tested positive for drugs again.
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Marks said that when she informed Mother of the test results, Mother
responded she had placement for I.N.B. and wanted him placed with T.D. Marks
testified she then went to T.D.’s house, and he was cooperative. Marks indicated that
T.D. was forthcoming with his information but hesitant to give his fiancée’s, because
he was unsure if she wanted to be a part of the case. T.D. also advised that his mother,
K.D., would be the backup medical consenter. Marks testified she walked through
the home, everything seemed appropriate, and the removal worker took over from
there. I.N.B. was placed with T.D. on April 20, 2021, a little over a month after the
intake. Marks said she did not order the home study but did not know if the removal
worker ordered one. She described the process of ordering a home study. Marks
testified that the required information to begin T.D.’s home study would be his name,
date of birth and social, and she had that information on T.D. and his girlfriend.
According to Marks, in March 2021, Mother told her that I.N.B. had never
met Father, and Father had never laid eyes on I.N.B. When Marks asked about
Father’s family for placements, Mother told her she did not know where Father was.
Marks said she never met with Father, but a note indicated Father wanted a home
study done of his mother that Marks entered; however, she testified that Murphy
may have been involved at that point and could have sent that information to her,
which she entered.
8
Paternal Grandmother’s Testimony
Father’s mother, Grandmother, testified at trial. She testified she visited I.N.B.
in the hospital when he was born but only stayed in the NICU five minutes, because
it was upsetting to see him in pain and going through withdrawals. Grandmother
testified that when I.N.B. was small, she visited him through CPS and Mother, and
after he was returned to Mother, she still allowed Grandmother to see I.N.B.
Grandmother testified she knew of Father’s drug problem, which he has had
since the age of seventeen and is now thirty-two. Grandmother said Father has been
in and out of prison most of his adult life. His criminal history includes drug charges,
burglary, and evading arrest. During Grandmother’s testimony, the Department
entered copies of Father’s criminal convictions, including three felony convictions
from January 2022, specifically felony theft, evading arrest, and felony possession
of a controlled substance. Father received a six-year sentence for the felony
possession of a controlled substance and nineteen-month sentences for the other two
charges. Grandmother confirmed that Father’s parole was recently denied.
Grandmother testified there are other counties Father has convictions in, but there
have been so many she cannot keep track of them all.
Grandmother testified that I.N.B. has been exposed to methamphetamines
twice and needs a stable home and a fresh start, and she wants what is best for him.
Grandmother did not feel he should go back to Mother, because this is the second
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time she has exposed him to drugs, and she fears it will happen again, and he will be
moved, which is hard on him. Grandmother was contacted about being a placement
for I.N.B. but she has custody of another grandchild, so she could not take I.N.B.
Grandmother did not feel that Father would be an appropriate placement for
I.N.B., given his repeated behaviors. While in jail, Father says he will change, but
when released, he returns to the same crowd doing the same thing in a week.
Grandmother testified that Father was not incarcerated when he learned Mother was
pregnant with I.N.B. According to Grandmother, Mother told her Father wanted her
to have an abortion and hit her in the stomach when she was pregnant. Grandmother
also testified that Father has not wanted anything to do with I.N.B. since he was
born. Grandmother explained that Father had opportunities to see I.N.B. but denied
them; I.N.B. does not know Father, and he does not know I.N.B. Grandmother
testified that Father did not care about I.N.B., and if he did, he would have been
involved “from day one.” Grandmother testified that Father had only seen I.N.B.
three or four times since his birth and never provided any financial support.
Grandmother testified that when Father was not in jail, he had never done the right
thing for I.N.B. She said that Father has only wanted contact with I.N.B. since he
has been incarcerated this time. Grandmother testified the possibility of Father
getting out of jail and separating himself from his past was slim.
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Grandmother said that T.D. allowed her to continue seeing I.N.B. while he
was placed there. Grandmother testified that after I.N.B. was removed from T.D.,
Department Supervisor Lacie Salinas and Caseworker Kristina Nieto called her to
ask if there were any other family members that they could place him with, but
Grandmother did not have any names to give them. Grandmother felt that T.D.’s
parents, K.D. and D.D., loved I.N.B., accepted him as a grandchild, and in I.N.B.’s
mind, they were his grandparents. Grandmother testified that Father told her in a
letter he was open to K.D. and D.D. taking I.N.B. but did not know if he shared that
with the caseworker.
Grandmother explained that she has concerns after speaking with K.D.,
because K.D. told her she had a history of hydrocodone use and marijuana use,
supposedly had not been using them in a while, but her drug test was positive for
hydrocodone. Grandmother believed K.D. and D.D. are so connected to Mother that
it would not give I.N.B. the fresh start he needs. Grandmother believed that it was
in I.N.B.’s best interest to have a fresh start without continuing access to Mother and
Father because of the past.
Grandmother testified that terminating both parents’ rights was in I.N.B.’s
best interest. Grandmother believed Father’s past behavior is a good predictor of his
future behavior. Grandmother testified she would like the current foster family to
have the opportunity to adopt I.N.B.
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Grandmother testified a second day and offered insight regarding her son’s
failure to attend the trial by Zoom. Specifically, Grandmother testified that Father
contacted her the previous evening and confirmed he did not get out of bed the day
before, because he did not want to talk to his attorney. Grandmother testified that
Father’s plan was to relinquish his rights, and he spoke with Mother about it.
Grandmother agreed that some of Father’s testimony contradicted the notion that he
wanted out from the beginning, but noted her son often contradicts himself.
Grandmother said Father told her that he would like for I.N.B. to remain in his
current placement since he is doing well, or he would agree to T.D.’s family, because
Grandmother could still see him.
Mother’s Testimony
Mother admitted that I.N.B. was born addicted to methamphetamines because
she used while pregnant, and after I.N.B. was returned to her, in 2021, I.N.B. tested
positive for methamphetamines again, because she exposed him to it. Mother
testified that she was in a relationship with Father for about three years, and she used
drugs with Father during that time. Mother testified that Father was angry that she
would not have an abortion but denied he hit or kicked her in the stomach. Mother
said that Father had only seen I.N.B. three to five times, has never been a part of his
life, and does not have a relationship with him. Mother said Father never paid child
support.
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Mother explained that T.Y.D. was Mother’s former sister-in-law, and Mother
said T.Y.D. could not be a placement for I.N.B. when asked. Mother said she was
told that T.D.’s girlfriend was not a good person and used drugs. Mother testified
that she expressed concerns about T.D.’s household in August 2021 because T.D.’s
girlfriend was drinking alcoholic beverages, and T.D.’s girlfriend did not want to
give her information to CPS, because her family has CPS history. Mother testified
that she lived with K.D. during this case for a period and was told that I.N.B. could
not be placed there while she lived there.
Father’s Testimony
Father testified he believed I.N.B. was his child when Mother told him she
was pregnant since they had been together a couple of years, but he did not go to the
hospital to see I.N.B. when he was born. Father said he did not provide Mother
financial or any other support for I.N.B. despite acknowledging a duty to do so.
Father testified that he had only seen I.N.B. a couple of times.
Father testified that he was incarcerated on a six-year sentence he received on
January 18, 2022. Father testified that the charges were for felony theft, felony
evading, and felony possession of a controlled substance, and he committed those
crimes after I.N.B. was born. Father said he received credit for time served, his
maximum sentence release date is October 2026, and he was recently denied parole
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based on his criminal history. Father subsequently denied he would be in prison until
2026 and testified he should be released next year even though he was denied parole.
When asked what he wanted for I.N.B., Father said he wanted I.N.B. placed
with Mother. Father testified that if placement with Mother is not possible, he
wanted I.N.B. placed with K.D. and D.D., so he can be around his siblings. Mother
told him she was doing all her services, and Father believed Mother could provide a
safe and stable environment for I.N.B. Father testified that if the evidence showed
otherwise, he believed D.D. and K.D., T.D., or T.Y.D. could provide a safe and
stable environment. Father denied telling Grandmother that he wanted to relinquish
his rights and claimed Grandmother lied. Father testified he did not want to
relinquish his rights and “can’t give up” on I.N.B. Father testified that he wanted
Mother to have an abortion while pregnant with I.N.B. but denied hitting her in the
stomach.
When asked what he has done to provide a safe, stable home for I.N.B., Father
said he picked out K.D. to care for I.N.B. until he is released from prison. When
asked if he knew that K.D. had conversations with CPS that she could not pass a
home study in the past because she smokes marijuana, Father responded that he did
not believe it. Father said if true, it would concern him, but asserted it was untrue.
Father testified he agreed to leave I.N.B. with T.D., and prior to removing
him, the caseworkers did not tell Father about any problems. Father testified when
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he learned I.N.B. had been moved into foster care, he suggested T.Y.D., K.D., or
D.D. as caregivers. When Father asked why I.N.B. was moved, he was told there
was a failed home study. Father said that in September 2021, he provided other
potential placements for I.N.B. which included T.D. and D.D., yet CPS moved
I.N.B. into foster care over family. Father testified that he understood that while at
T.D.’s home, I.N.B. exhibited concerning behaviors, including cussing, biting,
kicking, hitting, and acting out sexually, and Father did not have personal knowledge
of anything T.D. did to help I.N.B. with these behaviors. When specifically asked
about another caregiver on his Caregiver Resource Form who had struggled with
addiction, Father said he would be a good placement if that person was doing well
now.
Father testified he was told that I.N.B. was defiant and acting out sexually,
which concerns him, but Mother’s inconsistent employment history and housing did
not concern him. Additionally, despite Mother exposing I.N.B. to drugs again,
Father believed it would be good to return him to Mother.
Father testified I.N.B. experienced trauma by being away from his family,
relatives, and siblings. Father testified I.N.B.’s worsening behavior in foster homes
was because he was kept from Mother and siblings, and he probably felt abandoned.
Father agreed it was traumatic for I.N.B. to be exposed to methamphetamines, as
was Father’s lack of support, and those things were not in I.N.B.’s best interest.
15
Father testified he demonstrated a healthy parent-child relationship with
I.N.B. by writing him a couple of letters with pictures once before Christmas and
once after, but it had been over three months since I.N.B. heard from him. In total,
Father testified he wrote three letters, received two pictures, and he talked to I.N.B.
on the phone. Father said he previously worked as a pile driver and had the ability
to make $70,000 to $80,000 per year and would be willing to pay child support.
Father felt he could provide for I.N.B.’s emotional and physical needs in the future
by being a productive citizen and being there for him.
Father denied that he refused to participate during the beginning of trial and
claimed Grandmother lied in her testimony. However, following Father’s testimony
and assertion that Grandmother lied, a jailhouse conversation recorded during trial
was played for the jury in which Father admitted to Grandmother he did not want to
participate, refused to come, and told her he wanted to relinquish his rights at one
point.
Department Supervisor Lacie Salinas’s Testimony
Salinas testified that she was the supervisor assigned to this case. Salinas
described some of the concerns the Department had with T.D.’s girlfriend, which
included leaving an alcoholic beverage in I.N.B.’s reach, which they observed in
May and prepared a safety plan to address. Salinas also said the Department failed
to document certain text messages involving these concerns and the safety plan and
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acknowledged it was something they should have done; however, she testified this
did not change her position about the case. Salinas explained that they did not
immediately remove the child from T.D., because they really wanted the placement
to work. Salinas discussed other potential fictive kin placements they considered for
I.N.B.
One of the placements they considered was with K.D. and D.D., and Salinas
explained why that placement would not work, which included K.D.’s health
problems, mental health issues, pill use, and marijuana use. Salinas explained that
the first home study the contractor prepared on T.D. contained mistakes so they
wanted to obtain a new one. Salinas also discussed the difficulties the Department
had in trying to obtain a new home study on T.D. and specifically noted his
girlfriend’s lack of cooperation. Salinas explained that between August 10 and 19,
2021, Caseworker Kristina Nieto met with Mother to request names of family
members for potential placement, and Salinas called Grandmother to get names since
they did not want to place I.N.B. in a foster home, but none of them worked out. In
August when I.N.B. was removed from T.D. and the Department was looking for
other placements, K.D. and D.D. were not mentioned as possible placements for the
Department to consider. Salinas testified that K.D. was invited to the family group
conference but did not attend.
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Salinas testified the Department violated policy by failing to: 1) timely initiate
a home study; 2) directly notify Father of the move; and 3) enter text messages.
Caseworker Kristina Nieto’s Testimony
Nieto testified that she was the assigned caseworker for I.N.B. Nieto testified
she believed Father knowingly engaged in criminal conduct that resulted in his
conviction of an offense and is confined or imprisoned with the inability to care for
the child for not less than two years from the date of the filing of the petition. Nieto
testified she believed it was in I.N.B.’s best interest to terminate Father’s rights. With
respect to best interest, Nieto testified that Father did not have a relationship with
I.N.B., and he has not been able to show he can provide for him or meet his emotional
needs.
Nieto was only aware of two letters or pictures Father sent to I.N.B. while the
case was pending, but Father facetimed with I.N.B. during two of Mother’s visits.
Nieto testified that Father had not arranged for any safe, stable person to take care
of I.N.B. during his incarceration. Nieto explained she first talked to Father about
Grandmother being a placement in May 2021 and then in October 2021, discussed
the possibility of K.D. and D.D. being a placement. Father only offered Grandmother
as an option, and Nieto was the one who inquired if K.D. and D.D. would be an
option. They contacted Grandmother, and she could not take care of I.N.B. Nieto
testified that she talked to Father multiple times about placements, but those were
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the only suggestions. Nieto explained that she identified K.D. and D.D. as potential
placements in April 2022, when the court ordered placement was done.
She also described the problems the Department had getting T.D.’s girlfriend
to cooperate with the home study information requests. According to Nieto, they
agreed to redo the study so it would be accurate and fair to T.D. and his girlfriend,
but when the home study contractor reached out to them, they refused. The
contractor informed the Department that when they returned to redo the study, T.D.
and his girlfriend were uncooperative. Then, on August 10 at 8 p.m., T.D. texted
Nieto and told her his girlfriend would do the home study, but Nieto said the
contractor would not come back out. Nieto explained they also did not receive the
signed safety plan they previously requested from T.D. until August 13, 2021. Nieto
said they removed I.N.B. from T.D.’s home on August 19, 2021.
Nieto testified that Father never saw I.N.B. during 2018 even though he was
not incarcerated the whole time; they were constantly looking for Father. Nieto
explained that Father changed his mind several times about relinquishing his rights.
Nieto testified that I.N.B. had problems, which have become worse over the
years. Nieto confirmed that I.N.B. exhibited troubling behaviors since May 2021
while in T.D.’s home. Nieto did not believe T.D. was equipped to deal with the
problems or even know what was going on, and he tended to minimize the behaviors.
Nieto also testified that she did not believe T.D., K.D., or D.D. would be a good
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home for I.N.B., because they were involved previously and failed to step in for
I.N.B. before CPS became involved. I.N.B. is in occupational therapy, play therapy,
and skills therapy, and the current foster family could get him the therapies he needs.
Nieto also acknowledged pages of text messages from T.D. and Mother that
had not been entered into the Department’s records, and she did not have a good
explanation other than they were overwhelmed. She received a “talking to” and will
do her best to ensure it does not happen again.
Foster Mother’s Testimony
E.D. is I.N.B.’s current foster mother. E.D. testified that she and her husband
want to adopt I.N.B. E.D. testified that I.N.B. has been diagnosed with A.D.H.D.,
disruptive mood dysregulation disorder, oppositional defiance disorder, major
depressive disorder, and PTSD, which require active treatment. E.D. outlined
multiple types of therapy I.N.B. currently receives. E.D. testified that when I.N.B.
acted out sexually and she asked him where he learned it, he told her from a phone
belonging to either T.D. or I.N.B.’s older brother living in T.D.’s home. E.D.
explained that I.N.B.’s behavior problems require a high level of care, and he has no
chance of a successful life if he does not have parents to consistently implement
specialized parenting techniques and therapies. E.D. believes that she and her
husband can give I.N.B. a safe, stable and loving environment.
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E.D. described the concerns she had about K.D. and D.D. as placements and
testified that K.D. told her once that she was just too old to take him. E.D. testified
that when I.N.B. first came into their care, Mother told her she did not want I.N.B.
going to K.D. and that is why no home study was done.
Fictive Family’s Testimony (T.D., D.D. and K.D.)
Several members of I.N.B.’s fictive family testified, including fictive
grandparents K.D. and D.D. as well as T.D. D.D. denied that I.N.B. had behavioral
problems but later agreed he had some behavioral issues that warranted discipline.
Despite certain behaviors I.N.B. exhibited warranting big family discussions, D.D.
testified they did not seek out additional counseling. D.D. believed I.N.B.
progressively worsened in CPS custody. D.D. testified that he and his wife could
meet I.N.B.’s needs, including visits to Texas Children’s Hospital for I.N.B.’s
therapy. D.D. agreed I.N.B. needed intervention and was getting that help in the
current placement.
T.D. said he was willing to co-parent with Mother and Father. T.D. testified
that he knew Father when he was not under the influence, and he was a hard worker.
He believed if Father was not using drugs, he could get a job and pay child support,
start working steps, and be able to see I.N.B. T.D. confirmed that I.N.B. knows him
as Daddy. T.D. testified that I.N.B. is his son, he took him in as such, has had him
since birth, and he does not want him taken away. T.D. testified that Father has never
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stepped up for I.N.B., supported him, or filled any type of father role. T.D. also
testified that he provided the requested home study information to Nieto in text
messages, which were admitted as evidence. However, he acknowledged it was
partially true that when one of the ladies called about the home study, his girlfriend
may have cursed the second time, because they were both frustrated since they
already participated in one. He also testified that they did not return the signed safety
plan until August 13, although the Department requested it in July. The text
messages with Nieto and introduced by Father confirm this.
K.D. testified that she is the biological grandmother of I.N.B.’s siblings and
T.D.’s mother. K.D. said she is not currently smoking marijuana or on any
medications that would impair her ability to care for a child. K.D. testified they have
sufficient income to meet I.N.B.’s needs if he is placed with them and would be
willing to accept placement but said they recently filed for bankruptcy. K.D. further
testified that she could co-parent with Father if he “does right” but does not think it
is in I.N.B.’s best interest that Father remain in I.N.B.’s life, because he is
incarcerated and I.N.B. is too young to understand. Father has not been any part of
this child’s life. K.D. said she communicated with Father, and he told her that he
wanted I.N.B. to be with Mother, but if the judge will not allow that, he would like
for K.D. and D.D. or T.D. to have I.N.B.
22
Other Evidence
Additional evidence admitted at trial included, among other things: copies of
Father’s criminal convictions; July 2021 and September 2021 status hearing
transcripts; January 2022 permanency hearing transcript; Caregiver Resource Forms
naming two of Mother’s relatives filed January 2022; recorded jailhouse phone
conversations between Father and Grandmother; Father’s service plan; Father’s
letters and drawings to I.N.B.; Nieto’s correspondence with Father regarding
potential placement with fictive kin and relinquishment; emails from Nieto to
Father’s attorney regarding relinquishment paperwork Father requested; email from
Salinas to ad litem regarding potentially moving the child for T.D.’s lack of
cooperation with the home study; Kinship Caregiver Home Assessment for fictive
kin K.D. and D.D. completed May 2022, Foster Mother’s monthly summary
updates; text messages between Nieto and D.D.; Kinship Disposition and Summary
form dated May 16, 2022, ruling out fictive kin K.D. and D.D. based on K.D.’s
positive hydrocodone test and no prescription; drug test results for fictive kin K.D.
and D.D.; Kinship Caregiver Home Assessment for fictive kin T.D.; text messages
between Nieto and T.D.; text messages between Nieto and Mother; and I.N.B.’s
December 2021 psychological evaluation.
23
Termination
The trial court found by clear and convincing evidence the Department proved
predicate termination ground Q as to Father and that termination of Father’s parental
rights was in I.N.B.’s best interest.
STANDARD OF REVIEW
The standard of proof required in cases seeking termination of parental rights
is clear and convincing evidence. See id. § 161.001(b); In re E.N.C., 384 S.W.3d
796, 802 (Tex. 2012) (citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)) (other
citations omitted). 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.” Tex. Fam. Code Ann. § 101.007.
When conducting a legal sufficiency review of the termination of parental
rights,
a court should 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 the finding was true. 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. A corollary to this
requirement is that a court should disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been
incredible.
In re J.F.C., 96 S.W.3d at 266; see also In re E.N.C., 384 S.W.3d at 802.
24
In a factual sufficiency review, we “give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing[]” and must
determine “‘whether the evidence is such that a factfinder could reasonably form a
firm belief or conviction about the truth of the State’s allegations.’” In re J.F.C., 96
S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). Considering the
entire record, if 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. We defer to the factfinder’s findings and do not substitute our
judgment for the factfinder’s. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The
factfinder is the sole arbiter of the witnesses’ credibility and demeanor. See id. at
109 (quoting In re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
ANALYSIS
Statutory Ground Q
In his second issue, Father challenges the legal and factual sufficiency of the
evidence to support predicate ground Q. Coupled with a best interest finding, a trial
court may order termination of a parent’s rights to a child if it finds by clear and
convincing evidence that a parent has “knowingly engaged in criminal conduct that
has resulted in the parent’s: (i) conviction of an offense; and (ii) confinement or
imprisonment and inability to care for the child for not less than two years from the
25
date of filing the petition[.]” Tex. Fam. Code Ann. § 161.001(b)(1)(Q).
“Terminating parental rights under subsection Q requires that the parent be both
incarcerated or confined and unable to care for the child for at least two years from
the date the termination petition is filed.” In re H.R.M., 209 S.W.3d at 110 (emphasis
original); see In re H.O., 555 S.W.3d 245, 251 (Tex. App.—Houston [1st Dist.]
2018, pet. denied). In In re Caballero, the Amarillo Court of Appeals interpreted Q
as requiring a three-step process: (1) the party seeking termination must establish the
parent’s knowing criminal conduct resulted in incarceration for more than two years;
(2) the parent must produce some evidence as to how he would arrange to provide
care for the child during that period; and (3) the party seeking termination would
then have the burden of persuasion that the arrangement would not satisfy the
parent’s duty. See 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied); see
also In re B.D.A., 546 S.W.3d 346, 358 (Tex. App.—Houston [1st Dist.] 2018, pet.
denied).
Father does not dispute that his knowing criminal conduct resulted in his
conviction and incarceration for more than two years from the date of filing the
petition, rather he disputes the “inability to care for a child” element. See Tex. Fam.
Code Ann. § 161.001(b)(1)(Q); In re H.R.M., 209 S.W.3d at 110. Given that the two-
year incarceration period is undisputed, we address whether Father produced some
evidence as to how he would arrange care to provide for I.N.B. during his
26
incarceration. See In re B.D.A., 546 S.W.3d at 358 (noting shifting burden and three-
step process); In re Caballero, 53 S.W.3d at 396 (same).
“[A] parent relying on another’s provision of care to avoid termination under
Subsection (Q) must demonstrate that the care is being provided on behalf of the
parent, not out of an existing duty or inclination to care for the child.” In re J.G.S.,
574 S.W.3d 101, 119 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (citing In
re H.R.M., 209 S.W.3d at 105) (other citations omitted). An incarcerated parent does
not meet his burden by merely producing evidence of an un-incarcerated relative
who is willing and able to care for the child, rather the parent must present evidence
the alternative caregiver is providing care on behalf of the parent. See id. (citations
omitted). Likewise, absent evidence that an un-incarcerated parent has agreed to
provide support for the child on the incarcerated parent’s behalf, merely leaving a
child with an un-incarcerated parent does not constitute the ability to provide care.
See In re S.A.B., No. 05-20-00272-CV, 2020 WL 4915329, at *5 (Tex. App.—Dallas
Aug. 21, 2020, no pet.) (mem. op.). While there was some evidence that T.D., K.D.
and D.D. would care for I.N.B., Father must establish that they are doing so on behalf
of Father, not out of their own personal obligations to or desires for the child. In re
J.G.S., 574 at 121; see also In re H.R.M., 209 S.W.3d at 110; In re D.D., No. 07-19-
00392-CV, 2020 WL 830988, at *2 (Tex. App.—Amarillo Feb. 19, 2020, pet.
denied) (mem. op.).
27
Father asserts that “the alternative proposed caregivers indicated they would
do so on behalf of [Father].” But the record does not support his assertion. See In re
H.R.M., 209 S.W.3d at 110 (noting that nobody testified they were willing to care
for the child on father’s behalf during his incarceration). T.D. testified that I.N.B. is
his son, he took him in as such, has had him since birth, and he does not want him
taken away. Although he would be willing to co-parent with Father, this testimony
does not show that T.D. is caring for I.N.B. on Father’s behalf. Rather, it shows T.D.
treated I.N.B. as his own child. Likewise, K.D. testified that when communicating
with Father, he expressed a desire for I.N.B. to return to Mother, and alternatively
to live with K.D. and D.D. or T.D. Moreover, K.D. testified that although she might
be willing to co-parent with Father if he “does right,” she did not feel it was in
I.N.B.’s best interest for Father to remain in I.N.B.’s life given his incarceration and
that he had never been a part of I.N.B.’s life. D.D. said he wanted I.N.B. to be
returned to Mother with T.D. having permanent managing conservatorship, but if
not, he and K.D. would adopt I.N.B. D.D. also believed Father had the potential to
be a positive person in I.N.B.’s life. However, none of this testimony establishes that
K.D. and D.D. agreed to care for I.N.B. on Father’s behalf. See In re H.R.M., 209
S.W.3d at 110; In re J.G.S., 574 S.W.3d at 118; In re D.D., 2020 WL 830988, at *2.
Further, even if Father met his burden of production, the trial court could have
concluded based on the evidence that these placements were inappropriate for I.N.B.
28
See In re Caballero, 53 S.W.3d at 396 (noting once parent meets burden of
production showing he has arranged to provide care during incarceration, the
Department has the burden of persuasion to show the arrangement is not
appropriate). Witnesses testified that T.D. knew I.N.B. was exhibiting concerning
behaviors in his home but did not take steps to get him the help he needed.
Additionally, testimony established that although K.D. did not currently smoke
marijuana, she had done so daily for years after suffering a heart attack, that D.D.
worked offshore for weeks at a time, and they recently filed for bankruptcy. I.N.B.
was removed from Mother twice after the child and Mother tested positive for
methamphetamines. Finally, evidence established that I.N.B. had significant
emotional needs and behavioral issues that required ongoing therapy several times a
week, which the trial court could have determined these proposed alternate
caregivers would have been unable to meet.
Viewing the evidence in the light most favorable to the trial court’s finding
under subsection 161.001(b)(1)(Q), we conclude that the trial court could reasonably
form a firm belief or conviction that Father knowingly engaged in criminal activity
that resulted in his conviction of an offense, and confinement or imprisonment and
inability to care for I.N.B. for not less than two years from the date of filing the
petition. See Tex. Fam. Code Ann. § 161.001(b)(1)(Q); In re H.R.M., 209 S.W.3d at
110. Therefore, the evidence was legally sufficient to support the trial court’s
29
predicate finding as to subsection Q. Also, considering the entire record and any
disputed evidence that the trial court could not credit in favor of its finding and
giving due consideration to evidence that the trial court could reasonably have found
to be clear and convincing, we determine the trial court could reasonably form a firm
belief or conviction about the truth of the Department’s allegations. See In re J.F.C.,
96 S.W.3d at 266; In re C.H., 89 S.W.3d 17, 25. Accordingly, the evidence is
factually sufficient to support the trial court’s predicate finding as to subsection Q.
We overrule this issue.
Best Interest
Father challenges the legal and factual sufficiency of the evidence supporting
the trial court’s best interest finding. Trial courts have wide latitude in determining
the children’s best interest. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.
1982). There is a strong presumption that the children’s best interest is served by
keeping them with their parent. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (citation omitted); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston
[14th Dist.] 2012, no pet.); see also Tex. Fam. Code Ann. § 153.131(b). Prompt and
permanent placement of the child in a safe environment is also presumed to be in the
child’s best interest. Tex. Fam. Code Ann. § 263.307(a).
The Family Code outlines factors to be considered in determining whether a
parent is willing and able to provide a safe environment for the children. See id. §
30
263.307(b). Several other nonexclusive factors may be considered in a best interest
analysis, including: (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 parental abilities of the individuals
seeking custody; (5) the programs available to assist these individuals to promote
the best interest of the children; (6) the plans for the children by these individuals or
by the agency seeking custody; (7) the stability of the home or proposed placement;
(8) the parent’s acts or omissions that may indicate that the existing parent-child
relationship is not a proper one; and (9) any excuse for the parent’s acts or omissions.
See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also In re A.C., 560
S.W.3d 624, 631 (Tex. 2018) (characterizing the Holley factors as “nonexclusive”).
No particular Holley factor is controlling, and evidence of one factor may be enough
to support a finding that termination is in the child’s best interest. See M.C. v. Tex.
Dep’t of Family & Protective Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso
2009, pet. denied) (“Undisputed evidence of just one factor may be sufficient to
support a finding that termination is in the best interest of a child.”) (citations
omitted); see also In re C.H., 89 S.W.3d at 27.
We may consider circumstantial evidence, subjective factors, and the totality
of the evidence in our best interest analysis. See In re N.R.T., 338 S.W.3d 667, 677
(Tex. App.—Amarillo 2011, no pet.). A parent’s past conduct is relevant to
31
determining the parent’s present and future ability to care for a child. See In re C.H.,
89 S.W.3d at 28. Evidence supporting the statutory grounds for termination may also
be used to support a finding that the best interest of the child warrants termination
of the parent-child relationship. See id.We have explained the evidence shows Father’s long history of drug use,
criminal behavior, repeated incarcerations, refusal to take any part in I.N.B.’s life
prior to this case, and only minimal involvement after I.N.B.’s removal. Multiple
witnesses, including Grandmother, testified it was in I.N.B.’s best interest for
Father’s rights to be terminated. Specifically, Grandmother expressed concerns
about Father’s pattern of drug abuse, criminal behavior, and lack of involvement
with I.N.B. continuing and saw nothing that made her believe circumstances had
changed. Grandmother testified that Father had a pattern of going to jail, promising
to get clean, then returning to the same friends and behaviors within weeks of
release. Father admittedly had not provided any financial or other support to I.N.B.
Mother testified Father was not a part of I.N.B.’s life and had only seen him a few
times. Grandmother testified it was in I.N.B.’s best interest that Father’s rights be
terminated, and K.D. testified that she does not think it is in I.N.B.’s best interest for
Father to remain in his life as Father has never been a part of it.
While evidence of placement plans and adoption are relevant to best interest,
the lack of evidence about definitive plans for permanent placement and adoption
32
cannot be the dispositive factor. Id. Otherwise, best interest determinations would
regularly be subject to reversal on the sole basis that an adoptive family cannot yet
be located. Id. Instead, we ask whether, on the entire record, a factfinder could
reasonably form a firm conviction or belief that termination of the parent’s rights is
in the child’s best interest—even if the agency is unable to identify with precision
the child’s future home environment. See id. Although permanent placements were
not final for I.N.B., the E.D. testified they would like to adopt I.N.B. and could give
him a safe, stable, and loving environment. E.D. testified that I.N.B. had significant
needs that required consistent one-on-one interaction and was undergoing multiple
types of therapy several times a week. She further testified that I.N.B. had
“progressed tremendously” and explained how the therapies had helped him while
in their care. E.D. testified that I.N.B. is bonded to them. The caseworker testified
that E.D. and her husband are getting I.N.B. the therapies he needs and that E.D.
does very well with him. The guardian ad litem also noted on the record at trial that
I.N.B. wishes to remain with E.D. and her husband. When asked what his plans were
with I.N.B., Father said he would become a productive member of society and be
there for him. Father testified that he had read I.N.B.’s psychological evaluation and
understood he had problems but did not necessarily agree with the diagnoses,
although he admitted his son exhibited concerning behaviors.
33
Considering the evidence related to best interest, deferring to the trial court’s
determinations on witness credibility, the resolution of conflicts in the evidence, and
the weight given to the testimony, we conclude that the statutory and Holley factors
weigh in favor of the trial court’s finding that termination of Father’s parental rights
is in I.N.B.’s best interest. See Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a),
(b); Holley, 544 S.W.2d at 371–72. The trial court could have reasonably formed a
firm belief or conviction that termination of Father’s parental rights was in I.N.B.’s
best interest. See In re C.H., 89 S.W.3d at 28. We overrule this issue.
Department Records
Finally, Father generally complains about the Department’s production of
records in conjunction with his sufficiency challenge to the best interest finding. He
argues the Department’s production of documents did not comport with a pretrial
order to supplement records by a certain date each month, and when it did, the
Department failed to include certain documents in its records. He asserts this
violated his due process rights and hampered his ability to meet the requirements to
avoid termination.
Courts recognize the fundamental liberty interest a parent has under the Due
Process Clause of the United States Constitution in his or her child and require the
State to provide the parent with fundamentally fair procedures, including a clear and
convincing evidentiary standard, when seeking to terminate parental rights. See In
34
re E.N.C., 384 S.W.3d at 802; see also Santosky v. Kramer, 455 U.S. 745, 753–54
(1982). Based on the record before us, we conclude that the trial court’s handling of
the Department’s production of records and missing documents does not rise to the
level of a due process violation. Father was represented by counsel throughout the
proceedings. The record shows he was afforded an opportunity within days of
I.N.B.’s removal to provide input regarding potential caregivers but initially did not
want to be involved and refused to sign a resource form. He was also consulted about
potential placements throughout the proceedings. The trial court held an evidentiary
hearing regarding Father’s concerns and addressed those concerns by limiting what
documents the Department could use at trial.
Additionally, the record shows that certain complained-of records, including
text messages and home studies, were introduced by Father’s attorney and admitted
into evidence at trial. Rather than support Father’s position, and consistent with
witnesses’ trial testimony, these documents call into question the appropriateness of
Father’s recommended caregivers, as well as his credibility. Father has not shown
harm, specifically how any of these documents prevented him from making alternate
arrangements for his child. We will not reverse a judgment on appeal unless the
complained-of error probably caused the rendition of an improper judgment. See
Tex. R. App. P. 44.1. Even after liberally construing Father’s brief, considering the
whole record, and our analysis of the evidence relating to his legal and factual
35
sufficiency challenges, we conclude that Father failed to demonstrate that the
complained-of-errors caused the rendition of an improper judgment in this case. See
id.; see also Lion Copolymer Holdings, LLC v. Lion Polymers, LLC, 614 S.W.3d
729, 732 (Tex. 2020) (noting that we construe briefs reasonably but liberally).
We overrule Father’s complaints about the trial court’s discovery rulings and
the trial court’s rulings admitting several records the Department produced after the
deadline established in the trial court’s docket-control order.
CONCLUSION
Having overruled Father’s issues, we affirm the trial court’s termination order.
AFFIRMED.
________________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on January 24, 2023
Opinion Delivered February 2, 2023
Before Golemon, C.J., Horton and Johnson, JJ.
36