in the Interest of R.W. and J.W., Children ( 2022 )

Affirm and Opinion Filed June 22, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-01158-CV
IN THE INTEREST OF R.W. AND J.W., MINOR CHILDREN
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 89178
MEMORANDUM OPINION
Before Justices Pedersen, III, Goldstein, and Smith
Opinion by Justice Pedersen, III
This is an appeal from the termination of the parental rights of P.W. (Mother)
to her two young sons, R.W. and J.W. In a single issue, Mother challenges the
sufficiency of the evidence supporting the trial court’s finding that termination was
in the children’s best interest. We affirm the trial court’s Order of Termination.
BACKGROUND
In April 2020, the Texas Department of Family Protective Services (the
Department) received a referral based upon concerns involving Mother’s untreated
mental health, substance abuse, and “household dynamics,” which included
domestic violence. Following an initial investigation, the case was assigned to Kelsie
Garza, a Family Based Safety Services (FBSS) caseworker. At that time, R.W. was
one year old and J.W. was just a month old. They resided with Mother and her
husband—the boys’ father (Father)—at their maternal grandmother’s home in
Commerce, Texas. Rather than removing the children from Mother at that time, the
Department implemented a safety plan requiring both parents’ contact with the
children to be supervised by an approved person. The Department also requested
that Mother complete parenting services, couples counseling with Father, and a
mental health evaluation.
This program of voluntary working of services was not successful. Mother
continually missed her appointments required under the safety plan and failed to
create or take the children to their medical appointments. Garza explained that a
typical FBSS case lasts between three and six months. The services Mother was
requested to complete could have been finished in three months. But by October,
more than five months since the initial investigation, Mother had failed to begin most
of the services, and Garza had concerns that included “missed doctors’ appointments
for the children, the lack of cooperation with the department, participation in the
services, and positive drug tests for [Father].”1
The Department decided to seek a court order for compliance with the services
that initially were merely requested in November 2020. Although it obtained that
1
At the time of trial, Mother was still legally married to Father, but he had not lived with her for a
number of months. Prior to trial, Father voluntarily relinquished his parental rights to R.W. and J.W. We
recount his conduct only where it gives context to the Department’s concerns.
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order, and although Garza continued to work closely with Mother, Mother failed to
participate in services and to comply with the safety plan.
On December 4, 2020, the Department filed its Original Petition for Protection
of a Child, for Conservatorship, and For Termination in Suit Affecting the Parent-
Child Relationship, which sought possession of the children and temporary orders
appointing the Department as their sole managing conservator. The Department then
took possession of the children.
Once the children were removed from Mother’s custody, her case was
overseen Stacie Graf, a conservatorship specialist employed by the Department. Graf
created a service plan that addressed the Department’s concerns related to Mother’s
mental health, missed medical appointments, family violence, and Father’s drug use.
In January 2021, Mother agreed to the service plan and understood that if she failed
to complete its goals and services, her parental rights could be terminated. She did
complete parenting and domestic abuse classes. However, in January she tested
positive for methamphetamine. She continued to test positive throughout 2021, and,
as a result, the Department suspended her visits with the children in April of that
year. She was unsuccessfully discharged from both substance abuse counseling and
individual counseling.
The case was tried on November 18, 2021, and December 1, 2021. At the
conclusion of trial, the trial judge acknowledged the efforts of the Department to
work with Mother, stating:
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I want to say that I am impressed and grateful for all the efforts that I
heard in this trial that the Department made to try to work with the
mother. A lot more effort than I normally see in these cases . . . I think
they went above and beyond. And it’s very clear from this record that
they made every single effort to serve this mother and to serve these
children to the best of their ability.
The trial judge found that the Department had met its burden and that terminating
Mother’s parental rights was in the children’s best interest. She signed the Order of
Termination.
This appeal followed.
THE BEST INTEREST OF THE CHILDREN
A court may order involuntary termination of parental rights only if the court
finds that (1) the parent has committed one of a specified list of child-endangering
acts or omissions, TEX. FAM. CODE ANN. § 161.001(b)(1), and (2) termination is in
the best interest of the child, id. § 161.001(b)(2). In this case, the court found four
section-161.001(b)(1) acts,2 but Mother challenges only the finding that termination
was in the best interest of her children.3 We note at the outset that the same evidence
2
The court found sufficient evidence of the grounds listed in sections 161.001(b)(1)(D), (E), (O), and
(N).
3
The Texas Supreme Court has directed us to review the evidence supporting findings on grounds
161.001(b)(1)(D) and (E), even if a termination appeal is being resolved on a different ground, because
those findings may have an effect on subsequent proceedings involving the parent. See In re N.G., 577
S.W.3d 230, 234 (Tex. 2019) (citing FAM. § 161.001(b)(1)(M)). However, the supreme court’s directive
applies only when the parent seeks review of the (D) and (E) findings. Id. at 237 (“Allowing section
161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to
the court thus violates the parent’s due process and due course of law rights.”) (emphasis added). The trial
court’s findings on sections 161.001(b)(1)(D) and (E) are not presented for our review in this case.
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can be relevant to both section 161.001(b)(1) termination grounds and the child’s
best interest. In re D.W., 445 S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet.
denied).
Standards of Review
Given the constitutional magnitude of the interests at stake in parental
termination cases, the trial court’s findings must be made by clear and convincing
evidence. FAM. § 161.001(b); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). “‘Clear
and convincing evidence’ means the measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the truth of the allegations
sought to be established.” In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002) (quoting
FAM. § 101.007). Our standards of review reflect this heightened burden of proof.
In evaluating the evidence for legal sufficiency, we view the evidence in the
light most favorable to the finding, assume the fact finder resolved disputed facts in
favor of its finding if a reasonable fact finder could have done so, and disregard all
contrary evidence that a reasonable fact finder could have disbelieved or found
incredible. In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). If no reasonable fact
finder could form a firm belief or conviction that the matter to be proven is true, the
evidence is legally insufficient. Id. at 113.
When reviewing the factual sufficiency of the evidence, we consider all the
evidence and determine whether the fact finder could reasonably form a firm belief
or conviction that the termination grounds were proven. In re N.T., 474 S.W.3d 465,
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475 (Tex. App.—Dallas 2015, no pet.). We consider whether the disputed evidence
is such that a reasonable fact finder could not have reconciled the disputed evidence
in favor of its finding. Id. If the disputed evidence is so significant that a fact finder
could not reasonably have formed a firm belief or conviction, then the evidence is
factually insufficient. Id.The Holley Factors
Mother contends that the only evidence at trial showing termination was in
the best interest of her children “consisted of conclusory statement made by the
Department and CASA.” We disagree. The Department offered significant evidence
concerning the factors we evaluate to determine whether termination is in the best
interest of a child. Those factors include (1) the child’s desires, (2) the emotional
and physical needs of the child and the emotional and physical danger to the child
now and in the future, (3) the parental abilities of the individuals seeking custody,
(4) the plans for the child by those individuals and the stability of the home, (5) the
plans for the child by the agency seeking custody and the stability of the proposed
placement, and (6) the acts or omissions of the parent that may indicate the existing
parent-child relationship is not a proper one, and (7) any excuse for the acts or
omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). A
best interest finding need not be supported by evidence of every Holley factor. See
In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). “The absence of evidence about some of
these considerations would not preclude a factfinder from reasonably forming a
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strong conviction or belief that termination is in the child’s best interest, particularly
if the evidence were undisputed that the parental relationship endangered the safety
of the child.” Id.In this case, the children were too young to express desires concerning their
caregivers. But we address the remaining Holley factors, grouping them as helpful
to avoid repetition.
The emotional and physical needs of the children and the emotional and physical
danger to the children now and in the future.
The parental abilities of Mother.
Garza’s testimony indicated that Mother was unable to meet some of her
young children’s most basic needs despite continued instruction. One example was
their need for safe sleeping surroundings. Despite being repeatedly instructed that
the children needed to sleep in their beds, Mother continued to put J.W. to sleep in
a bouncer and R.W. to sleep strapped in a car seat. Similarly, Mother had instructions
from the children’s pediatrician—confirmed by Garza—concerning how much J.W.
should be fed, and Garza repeatedly explained the importance of feeding the baby
the proper amount, but Mother consistently fed him up to twice that amount. Garza
reported as well that she made repeated efforts to impress upon Mother the
importance of regularly bathing the children and tending to their nails.
J.W. had significant health issues during this time. Mother took him to the
hospital after he suffered a seizure in August, and she was instructed to take J.W. to
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a neurologist for a follow-up appointment.4 But despite Garza’s assistance in
scheduling and re-scheduling appointments, Mother never took him to see a
neurologist, despite the fact that the seizures continued to occur while J.W. was in
Mother’s care. According to Garza:
There were sometimes she didn’t make the appointment at all. And [the
children’s grandmother] or myself would have to make the
appointments for her. There were several times she missed an
appointment because she overslept or she was sick or out of town or
she just couldn’t remember.
Mother also failed to take J.W. to a cranial-facial specialist as recommended to
address a problem he had with limited neck mobility. Indeed J.W.’s pediatrician
dropped the child from his care after repeated missed appointments. Garza helped
Mother set up an appointment with a new doctor, but Mother missed that
appointment.
Garza gave detailed testimony concerning the months she spent working with
Mother. She testified that three months in, Mother was trying to address her mental
health concerns, which were certainly linked to her parenting failures. She
completed a psychiatric evaluation during the Department’s FBSS efforts and was
prescribed medications after being diagnosed with a bipolar condition, anxiety, and
4
This hospital visit actually resulted in another Department referral based upon the hospital’s hygiene
concerns. When Garza went to follow up on this referral, she observed that the baby “had a rash on his
bottom, a reddish mark on his neck. It appeared he had a ringworm or a ringworm-like circle on his stomach.
And he did have dirt between his toes and dirt underneath his fingernails.”
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depression. She was supposed to go to MHMR for medication management follow
up, but she was discharged for lack of attendance.
Garza testified that she did not see any change in Mother’s behavior in terms
of reducing the risks for the children. Again, Garza referred to the multiple missed
medical appointments for the children. She related that Mother often offered lack of
transportation as an excuse but that for almost every visit, Mother had a
transportation option and chose not to take it.
Garza was asked specifically whether Mother could see to the emotional and
physical needs of the boys. Garza replied that she did not believe Mother could,
because Mother herself would tell Garza that she was not physically able to do so.
Mother told her on a number of occasions that she would like her mother, the
children’s grandmother, to have temporary custody of the children.5 Garza
concluded that: “Her behavior did not show to me that she would be able to care for
the children.”
When Graf was asked whether Mother could meet the physical and emotional
needs of the children, she testified that although Mother “has a big heart and very
good intentions,” she could not meet those needs on her own. Graf stressed that
Mother relies on others in every aspect of her life, including keeping a roof over her
5
In this vein, the record establishes that Mother had given birth to four children before R.W. and J.W.
The father of the first child, a daughter, was awarded her custody. Mother voluntarily placed her three sons
born next with family friends. She acknowledged at trial that she did not assist in the support of any of these
children and had made no effort to regain their custody.
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head. Graf concluded that even if Mother wants to believe she can, she has not
“demonstrate[d] that she’s able to provide for the kids’ needs, much less her own.”6
Our review of the record did not reveal instances of good judgment by Mother
in dealing with her children’s needs or even good faith efforts to develop and
improve her parenting skills. We conclude these factors weigh in favor of
termination.
Mother’s plans for the child and the stability of the home.
Before the children were removed, Garza testified, they lived with Mother at
the home of their maternal grandparents. But throughout this time period—although
either five or six adults lived in the home—the family relied on the Department for
food and diapers and for help with rent and utilities.7 The children were present in
the house during episodes of domestic violence, first between their parents and later
between Mother and her sister who lived in the same house. The children lived in
6
More than one witness expressed concern about Mother’s ability to take care of herself. Along with
her financial and mental health issues, Mother testified concerning physical health issues. She had visited
a hospital because she “was hurting in [her] chest.” She was told then that she has congestive heart failure
and was advised to see a heart doctor. Mother had not identified a heart doctor or made an appointment to
see a heart doctor “because [she] [hadn’t] had the time.” Mother was not taking any medication for her
congestive heart failure. At the time of trial, Mother also testified that she believed she was pregnant. (She
had taken a pregnancy test while at the hospital for her chest pain.) She did not know how long she had
been pregnant or her expected due date. She explained she had lost her Medicaid card and was waiting to
get her Medicaid back before finding a heart doctor and obtaining prenatal care. Mother said she had filed
for a new Medicaid card in October 2021, but she explained the online system did not provide any indication
on how long it would take to get her card replaced.
7
Mother did not work but received monthly disability payments. When asked to explain the disability,
she testified “I can’t focus[] on one thing. I can’t read and write. And they said that I won’t be able to hold
a job, and do math.”
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one residence, but in fact their housing situation did not bear the hallmarks of
stability.
When asked about Mother’s housing situation after the children were
removed, Graf testified:
[Mother] did not have stable housing. She did from time to time, but it
was not consistent. She did reside with her mother for the majority of
the first half of the case. However, if there were ever any family
grievances, then [Mother] was kicked out of the house and she was
either living on the streets, living in an apartment with a friend, living
at the laundry mat or living in [Father’s] vehicle.
Graf went on to state that Mother had “stable housing” since she moved into
her current residence. Graf visited that home, which Mother rented month-to-month
from—and shared with—two friends. Mother provided assistance to one of the
friends, who had a number of medical issues. Graf testified to cluttered,8 dirty, and
unsafe conditions for young children throughout the house. Most concerning was
Graf’s testimony that the three adults also shared the house with twenty-six animals.
Photographs illustrated Graf’s descriptions of a “pile of fresh feces that ha[d]
obviously been accumulated overtime by multiple animals right outside the
children’s bedroom”; of “smeared, dried, trampled feces” on plywood floors in a
number of rooms; and of “pools of urine” throughout the house. Mother showed Graf
child-appropriate bedding she had purchased for the boys, but she said “nothing”
about the filthy condition of the residence. Graf expressed concerns about the boys’
8
Pictures showed the house—inside and out—piled high with containers and items the residents
salvaged from storage containers and hoped to re-sell.
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physical health were they to move into the home. She also expressed concern for
Mother’s ability to care for them while she took care of her friend’s medical needs.
Mother’s only plan for herself and the children was for her sister, A.P., to help
her comply with the Department’s service plan. A.P., herself a mental health
caregiver, testified at trial to a willingness to help Mother, but she had no answer as
to why she had never been able to help Mother during the entire period of Mother’s
involvement with the Department.
We conclude this factor weighs in favor of termination.
The Department’s plans for the child and the stability of the proposed placement.
The Department sought and received permanent managing conservatorship of
the boys with the express goal of their being adopted. Graf testified that the boys’
current foster parents are “adoption motivated” and that the Department’s plan was
to keep the boys in that home if Mother’s rights were terminated. Graf testified that
she believed the current foster parents could see to the boys’ emotional and physical
needs. She spoke of the training they undertook to become licensed as foster parents,
including training for children who require particular emotional care following
trauma. Graf opined that the foster family is very stable: the parents have been
married many years and have raised two healthy children of their own who remain
close to their parents.
Graf also testified to the improvement in J.W.’s development while in the care
of this family. He successfully completed the Department’s Early Childhood
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Intervention program and was much more mobile. He continues seeing a neurologist
for follow-up appointments but had not had a seizure since January 2021. The foster
parents have no difficulty maintaining a schedule and a routine for the boys or
getting them to medical appointments.
The boys’ CASA volunteer also testified that the foster family was providing
a stable home for them and that the boys appeared happy and bonded with the foster
parents.
Mother expresses concerns in this Court that her sons’ current foster home is
their third placement and that, at the time of trial, they had only been in that home
for approximately two months. Graf explained that while the prior placement had
been a positive one for the children, the family was not motivated to adopt, and so
the Department looked for and found the current placement. Moreover, although the
Department appeared hopeful at the time of trial that the current placement would
result in an adoption, the Department retained conservatorship of the boys. We can
infer from the Department’s efforts throughout its involvement with these children
that it will continue to monitor the boys’ progress and that any adoption will only
take place after appropriate time and evaluation.
We conclude this factor weighs in favor of termination.
The acts or omissions by Mother that may indicate the existing parent-child
relationship is not a proper one.
Any excuse for Mother’s acts or omissions.
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We have identified at some length Mother’s acts and omissions reflecting that
her existing parent-child relationship was not a proper one. For some seven months,
the Department offered her services and assistance to help her learn to care for
herself and the children; she was unable to do so. Despite significant efforts to
address all of Mother’s issues with household costs, transportation, maintaining a
schedule, and dealing with domestic violence, she made no apparent progress in
addressing her own well-being or that of her two children. Indeed, as the Department
points out in its briefing in this Court, it appears that Mother missed every
appointment with J.W.’s doctors over this period of seven months. Indeed, Mother
herself stated a number of times that she wanted to give temporary custody of the
boys to her mother, because she just could not manage their care and meet the
Department’s requests that she work her services. The record establishes, however,
that Mother did not work the services after the children were removed either. Instead,
she began using methamphetamine and forfeited her ability even to visit her
children.
Mother points to the fact that she suffered from mental health problems that
were not properly treated. But the Department made every effort to help her get the
treatment she needed, and Mother failed to attend appointments and to take
prescribed medication. We agree that mental illness alone is not sufficient grounds
for terminating the parent-child relationship. In re S.B., No. 05-20-00055-CV, 2020
WL 5361877, at *7 (Tex. App.—Dallas Sept. 8, 2020, no pet.) (mem. op.). However,
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‘“when a parent’s mental state allows [her] to engage in conduct [that] endangers
the physical or emotional well-being of the child, that conduct has a bearing on the
advisability of terminating the parent’s rights.’” Id. (quoting In re C.D., 664 S.W.2d
851, 853 (Tex. App.—Fort Worth 1984, no writ)). As Graf testified, Mother was not
able to make the positive behavioral changes that were needed to allow her to be
able to meet her own needs and the needs of her sons.
We conclude these factors weigh in favor of termination.
The Trial Judge’s Assessment of Best Interest
After the parties rested, the trial court found that the Department had
“absolutely” met its burden to prove by clear and convincing evidence each of the
four section-161.001(b)(1) grounds on which it sought termination, namely that
Mother had: allowed the children to remain in surroundings that endangered their
physical or emotional wellbeing (ground D), endangered the children by engaging
in conduct that placed them in dangerous situations (ground E), failed to comply
with court-ordered services (ground O), and constructively abandoned the children
(ground N). The trial judge went on to address the Holley factors on the record. She
walked through them one by one, finding that she had heard evidence sufficient to
persuade her that every one of the factors weighed in favor of termination of
Mother’s rights. The judge concluded by acknowledging that she had also heard
evidence of Mother’s disability and mental health issues; she conceded the
significance of those problems. But she emphasized:
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They don’t justify the use of drugs. They don’t justify [Mother’s]
failure to comply with services that were specially adapted to meet her
disability and mental health needs. And they don't justify me having
children in foster care for over a year, or almost a year, while a mom
hasn’t even made enough ground work, that I can even consider
returning the children to her.
So any excuse would be insufficient and certainly weigh in favor of
terminating the mother’s parental rights in the best interest of both J.W.
and R.W.
We acknowledge that a strong presumption exists that a child’s best interest
will be served by preserving the parent-child relationship. In re J.F.C., 96 S.W.3d at
294. However, the prompt and permanent placement of children in a safe
environment is also presumed to be in their best interest. FAM. § 263.307(a). We
conclude that the Department has carried its heavy burden to establish that
terminating Mother’s parental rights was in the best interest of these two children.
Whether viewing the evidence in the light most favorable to the finding or viewing
all the evidence before the trial court, a reasonable fact finder could have formed a
firm belief that terminating Mother’s parental rights was in the best interest of her
children. See In re K.M.L., 443 S.W.3d at 112; In re N.T., 474 S.W.3d at 475.
We overrule Mother’s single issue.
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CONCLUSION
We affirm the trial court’s Order of Termination.
/Bill Pedersen, III//
211158f.p05 BILL PEDERSEN, III
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF R.W. AND On Appeal from the 354th Judicial
J.W., MINOR CHILDREN District Court, Hunt County, Texas
Trial Court Cause No. 89178.
Opinion delivered by Justice
Pedersen, III. Justices Goldstein and
Smith participating.
In accordance with this Court’s opinion of this date, the order of the trial
court is AFFIRMED.
Judgment entered this 22nd day of June, 2022.
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