in the Interest of S.J.B. and A.B. ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00065-CV
__________________
IN THE INTEREST OF S.J.B. AND A.B.
__________________________________________________________________
On Appeal from the 88th District Court
Hardin County, Texas
Trial Cause No. 58415
__________________________________________________________________
MEMORANDUM OPINION
Appellants J.B. and M.L. 1, the father and mother of the minor children S.J.B.
and A.B., appeal the trial court’s order terminating their parental rights after a bench
trial. In four issues, appellants challenge the legal and factual sufficiency of the
evidence supporting the findings that they (1) allowed the children to remain in
conditions or surroundings that endangered their physical or emotional wellbeing;
1
The children’s mother, M.L., filed a letter brief stating that she adopts the
issues raised in J.B.’s brief. Therefore, we will also address J.B.’s issues as to M.L.,
and we refer to J.B. and M.L. collectively as “appellants[.]”
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(2) engaged in conduct or knowingly placed the children with persons who engaged
in conduct that endangered their physical or emotional wellbeing; (3) failed to
comply with the provisions of a court order; and (4) that termination was in the best
interest of the children. We affirm the trial court’s order terminating appellants’
parental rights.
BACKGROUND
J.B. testified that the children were removed from his care due to him failing
a drug test for methamphetamine and “[b]ad living conditions[,]” and he explained
that he “wasn’t taking care of things.” J.B. admitted that he had a problem with
methamphetamine and alcohol and had been to rehabilitation. In addition, J.B.
admitted that he had consumed alcohol since leaving rehabilitation. J.B. described
alcohol as his “preferred drug of choice.” J.B. explained that although his service
plan required him to attend AA or NA meetings, he had not done so.
According to J.B., when the children were removed, he had been living with
M.L., her boyfriend, and the children. When the children were removed, J.B.
received a service plan, and he testified that “quite a few” months went by before he
began to work on the service plan. At the time of trial, J.B. resided with his mother,
and he usually relied upon his mother for transportation. When asked where the
children would go if the judge decided to return them to his care, J.B. testified, “I
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don’t really have anywhere for them to go.” According to J.B., the children could
not live with M.L. because M.L. was residing in her sister’s home, and her sister did
not “want a bunch of people living there.” J.B. also explained that he is not currently
employed and does not have the financial resources to care for the children.
Gary Spears, an investigator for the County Attorney’s Office, testified that
on July 13, 2017, he was sent to the home of M.L. and J.B. regarding a reported
assault and “a report about some possible bomb-making materials.” Spears wore a
body camera when he went to the home, and the video recording from the camera
was admitted into evidence and published to the court. The video showed that the
home was dirty, cluttered, and in disrepair. Spears explained that he did not find any
bombs or bomb-making materials in the home, but he described the home’s
condition as “pretty bad[]” and stated that he had concerns about the safety of the
home. According to Spears, the home was unsafe for the children because it was
cluttered, “nasty[,]” and infested by ants.
Katheryn Parrott, a supervisor for the Department of Family and Protective
Services (“the Department”), testified that she received a report of neglectful
supervision of the children on July 14, 2017. Parrott testified that prior to visiting
the home of J.B. and M.L., she viewed a video of the home that caused her concern
because M.L. appeared to be under the influence and things were “scattered all
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throughout the home[.]” When Parrott entered the home, she saw a butcher knife on
a shelf that was accessible to the children, bottles of alcohol, animal feces, an
infestation of ants, noticed an odor, and there was very little food in the home.
According to Parrot, M.L. told her that she did not drink alcohol. Parrot explained
that when she visited the home on one occasion, one of the children was “eating
dried oatmeal out of a package.”
When asked why she was concerned for the children’s safety in the home,
Parrott testified, “The butcher knife. The fact that [M.L.] had said that [J.B.] is an
alcoholic and I observed alcohol bottles just scattered on the floor in the home led
me to believe that someone is consuming a significant amount of alcohol in the
home.” Parrott also explained that the beds she observed were soiled. In addition,
Parrot testified that J.B. told her he used Adderall without a valid prescription and
had smoked marijuana. According to Parrott, M.L. had reported that she believed
one of the older children smoked marijuana. 2 According to Parrott, M.L. told her
that she feared CPS because CPS receives $2000 for each removed child, and “[w]e
look for kids that have blue eyes and then we put them in a warehouse.” Parrot
testified that M.L.’s mental health was a concern. Parrott also testified that she was
concerned because M.L. said that she was no longer taking her prescribed
2
The older children are not involved in this appeal.
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medications. In addition, Parrott explained that the Department received another
intake regarding a physical altercation between M.L., her boyfriend, and one of
M.L.’s older children, which occurred at the home. Parrott testified that M.L. failed
to submit to required drug testing. When Parrott returned to the home on one
occasion, she determined that it had not been sufficiently cleaned, and she decided
to proceed with removal. Parrot explained that she considered the home to be in
horrible condition and she would not want children there.
Licensed psychologist Dr. Nisha Amin testified that she completed a
psychological evaluation of M.L., which involved “a mental status evaluation as well
as testing in the areas of intellectual functioning, achievement, and emotional and
personality functioning.” Amin concluded that M.L. has difficulties with reasoning
and logic, has experienced auditory and visual hallucinations, and has difficulty
organizing her thoughts. She diagnosed M.L. with schizoaffective disorder, bipolar
type. In addition, Amin diagnosed M.L. with major depressive disorder, PTSD,
generalized anxiety disorder, ADHD, substance abuse disorder, and borderline
personality disorder. Amin explained that people with M.L.’s diagnoses would have
difficulty gauging children’s needs and how to gauge the appropriate parenting
abilities that are needed for various situations.
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Amin characterized M.L. as having a “severe mental health history[]” and
stated that M.L. “has a difficult time in recognizing responsibility for the situation
that she was in, or her children for that matter.” According to Amin, M.L. is involved
in a dysfunctional relationship, lacked social support, and only stayed in the
relationship because it is her only means of financial support. Amin opined that M.L.
tends to cling to relationships at any cost, even if doing so is hurtful to herself or her
children. She indicated that M.L. is financially unable to independently provide
shelter and support for her children, lacks emotional stability, has mental health
issues that prevent her from making appropriate decisions for the children, and lacks
social and community resources. According to Amin, the children are “pretty much
running their lives on their own with very minimal supervision[,]” and M.L. did not
understand how intrusive drug abuse is for the children.
Amin expressed concern regarding M.L.’s failure to take her prescribed
medications and noted that historically, M.L. tried prescribed medications but would
eventually self-medicate with drugs. Furthermore, Amin testified that M.L.’s
understanding of disciplining children is limited, and M.L. does not understand the
difference between punishment and positive reinforcement. Amin opined that M.L.’s
mental deficiencies and diagnoses prevent her from caring for the children, and she
predicted that M.L. would not be able to sustain long term sobriety or mental health
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treatment. According to Amin, given M.L.’s lack of cognition, limited achievement,
poor social support, and emotional dysfunction, she would be unable “to parent
effectively long term.” Amin further opined that returning the children to M.L.
would harm the children and put them in an unsafe environment.
Licensed professional counselor Yolanda Pearl Jessie testified that the
Department sent M.L. to her office for counseling. According to Jessie, during the
initial assessment, M.L. behaved erratically, had trouble staying focused, and
suffered from “a notable anger problem.” Jessie explained that after M.L.’s first
appointment, M.L. appeared as an unscheduled patient on one occasion and “created
a scene[.]” According to Jessie, three separate sessions were needed to complete the
psychosocial assessment, but M.L. only attended two appointments.
Licensed chemical dependency counselor Michael Cary testified that he
counseled J.B. for twelve face-to-face sessions and approximately five phone
sessions. Cary explained that J.B. had a problematic history with methamphetamine
and alcohol. According to Cary, J.B. did not disclose his alcohol abuse at the
beginning. Cary explained that during counseling, J.B. tested positive for alcohol
and had a dilute negative result on a drug screening. Cary testified that J.B.
sometimes struggled to attend face-to-face sessions because J.B. relied upon his
mother for transportation.
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Cassie Boyd, a case worker with the Department, testified that both M.L. and
J.B. were involved in an altercation during one of their visits to the Department,
which resulted in the police being called. During the altercation, M.L. used profanity
and refused to take a drug test, and J.B. completed a drug test but admitted that he
had used methamphetamine a few days before. According to Boyd, J.B.’s
psychosocial assessment took longer than expected because he was dishonest with
the counselor. Boyd explained that the children were not attending school while in
the care of M.L.
Boyd testified that on one occasion when she visited the home of M.L. and
J.B., the house was in disarray, there were packages of meat on the floors, two large
cases of beer in the kitchen, the floor was covered with items, and “[y]ou had to be
really careful where you were walking.” According to Boyd, the home was
unsanitary, hazardous, and unsafe for younger children like S.J.B. and A.B.
Photographs of the home’s condition were admitted into evidence. Boyd explained
that when the children were removed, the home was “filthy[,]” infested with rats and
ants, lacked food, and there was trash throughout the home. Boyd testified that when
the children came into the Department’s care, they had lice. According to Boyd,
M.L. was not taking her prescribed medications.
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Boyd explained that S.J.B. and A.B. are doing well in their foster home, their
needs are being met, and they are attending school, and Boyd testified that the
Department believes the placement is in the children’s best interest. According to
Boyd, the children’s foster parents wish to adopt them, and she testified that their
foster parents were providing them with a loving and caring home, and the children
are safe and happy. Boyd testified that the foster parents are meeting the children’s
physical, emotional, and medical needs. Boyd opined that termination of the parental
rights of M.L. and J.B. is in the children’s best interest.
Dorothy Stanley, the guardian ad litem for the children, testified that S.J.B.
has “blossomed[]” and has bonded with her foster mother. Stanley testified that she
recommended terminating the parental rights of J.B. and M.L. to allow the children
to be adopted by their foster parents, and she opined that adoption by the foster
parents is in the children’s best interest. According to Stanley, J.B. had indicated that
he could not take the children and J.B.’s mother will not allow the children in her
home. In addition, Stanley testified that the children needed permanency to meet
their emotional and mental needs, and she expressed concern about the results of
J.B.’s drug and alcohol tests and recommended termination of J.B.’s parental rights.
Stanley testified that after counseling, the children “are content where they are.”
Stanley testified that M.L.’s mental health issues are a concern, and M.L. currently
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will not allow access to her home, and Stanley opined that termination of M.L.’s
rights is in the children’s best interest.
S.J.B. testified that she would like for her foster parents to adopt her, although
she also loves M.L. and J.B. When asked whether she “would be okay with never
seeing [M.L. and J.B.] again[,]” S.J.B. answered affirmatively. S.J.B. later testified
that she would like to “just visit[]” M.L. and J.B. S.J.B. also later testified that she
would prefer to live with J.B. and her brothers at her grandmother’s house. A.B.
testified that she loves M.L. and J.B. and she would prefer to live with them. After
the trial concluded, the trial judge signed an order terminating appellants’ parental
rights.
ANALYSIS
In four appellate issues, appellants challenge the legal and factual sufficiency
of the evidence supporting the findings that they (1) allowed the children to remain
in conditions or surroundings that endangered their physical or emotional wellbeing;
(2) engaged in conduct or knowingly placed the children with persons who engaged
in conduct that endangered their physical or emotional wellbeing; (3) failed to
comply with the provisions of a court order; and (4) that termination was in the best
interest of the children. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (2)
(West Supp. 2018).
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Under legal sufficiency review, we review 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 finding was true.” In the Interest of J.F.C.,
96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could, and we disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible. Id. If no reasonable factfinder could form a firm belief or conviction that
the matter that must be proven is true, the evidence is legally insufficient. Id.
Under factual sufficiency review, we must determine whether the evidence is
such that a factfinder could reasonably form a firm belief or conviction about the
truth of the Department’s allegations. Id. We give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor if its ruling. Id. If, in light of the entire
record, the disputed evidence that a reasonable factfinder could not have credited in
favor of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction, the evidence is factually insufficient. Id.
The decision to terminate parental rights must be supported by clear and
convincing evidence, i.e., “the measure or degree of proof that will produce in the
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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); In the
Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the
parent committed one or more predicate acts or omissions and that termination is in
the child’s best interest. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2018); see
also In the Interest of J.L., 163 S.W.3d at 84. We will affirm a judgment if any one
of the grounds is supported by legally and factually sufficient evidence and the best
interest finding is also supported by legally and factually sufficient evidence. In the
Interest of C.A.C., Jr., No. 09-10-00477-CV, 2011 WL 1744139, at *1 (Tex. App.—
Beaumont May 5, 2011, no pet.) (mem. op.). However, when, as here, a parent
challenges a trial court’s findings under section 161.001(1)(D) or (E), we must
review the sufficiency of those grounds as a matter of due process and due course of
law. In the Interest of N.G., ___ S.W.3d ___, 2019 WL 2147263, at *4, *6 (Tex.
May 17, 2019) (not yet published).
Section 161.001(1)(D) of the Family Code allows for termination of a parent’s
rights if the trier of fact finds by clear and convincing evidence that the parent has
“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(1)(D). Section 161.001(1)(E) allows for termination
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if the trier of fact finds by clear and convincing evidence that the parent has “engaged
in conduct or knowingly placed the child with persons who engaged in conduct
which endangers the physical or emotional well-being of the child[.]” Id. §
161.001(1)(E). A parent’s conduct in the home, such as illegal drug use, can create
an environment that endangers the child’s physical and emotional well-being. In the
Interest of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
“One parent’s drug-related endangerment of the child may be imputed to the other
parent.” Edwards v. Tex. Dep’t of Protective & Regulatory Servs., 946 S.W.2d 130,
138 (Tex. App.—El Paso 1997), overruled on other grounds, In the Interest of
J.F.C., 96 S.W.3d at 266. “The factfinder may infer from past conduct endangering
the child’s well-being that similar conduct will recur if the child is returned to the
parent.” In the Interest of M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth
2009, no pet.).
Regarding the children’s best interest, we consider a non-exhaustive list of
factors: (1) the desires of the child; (2) emotional and physical needs of the child
now and in the future; (3) emotional and physical danger to the child now and in the
future; (4) parental abilities of the individuals seeking custody; (5) programs
available to assist these individuals to promote the best interest of the child; (6) plans
for the child by these individuals or by the agency seeking custody; (7) stability of
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the home or proposed placement; (8) acts or omissions of the parent which may
indicate that the existing parent-child relationship is not proper; and (9) any excuse
for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72
(Tex. 1976); see Tex. Fam. Code Ann. § 263.307(b) (West 2019). No particular
Holley factor is controlling, and evidence of one factor may be sufficient to support
a finding that termination is in the children’s best interest. See In the Interest of A.P.,
184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.). The best interest
determination may rely on direct or circumstantial evidence, subjective facts, and
the totality of the evidence. See In the Interest of N.R.T., 338 S.W.3d 667, 677 (Tex.
App.—Amarillo 2011, no pet.).
The trial judge heard evidence that J.B., M.L., M.L.’s boyfriend, and the
children had all lived together. The trial court also heard evidence that J.B. used
methamphetamine and had a problem with alcohol. In addition, the trial judge heard
testimony and saw photographs and video showing that the home was cluttered,
dirty, infested with rats and ants, in disrepair, and dangerous for the children. The
trial court heard testimony that M.L. suffered from schizoaffective disorder, bipolar
type, major depressive disorder, PTSD, generalized anxiety disorder, ADHD,
substance abuse disorder, and borderline personality disorder, and she was not taking
her prescribed medications. The trial judge further heard testimony that M.L.’s
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mental health issues prevent her from making appropriate decisions for the children
and supervising them properly. Furthermore, the trial court heard testimony that a
physical altercation occurred between M.L., her boyfriend, and one of the older
children at the home, and the children had lice at removal. Viewing the evidence in
the light most favorable to the trial judge’s findings, we conclude that the trial judge
could reasonably have formed a firm belief or conviction that M.L. and J.B. (1)
knowingly placed or knowingly allowed the children to remain in conditions or
surroundings which endangered the physical or emotional well-being of the children
and (2) engaged in conduct or knowingly placed the children with persons who
engaged in conduct that endangered the children’s physical or emotional well-being.
See Tex. Fam. Code Ann. § 161.001(1)(D), (E); In the Interest of J.F.C., 96 S.W.3d
at 266; In the Interest of J.T.G., 121 S.W.3d at 125; Edwards, 946 S.W.2d at 138.
With respect to the children’s best interest, the trial court heard evidence from
Boyd that the children are doing well in their foster home, and their emotional,
medical, and educational needs are being met. The trial court heard the guardian ad
litem opine that termination of appellants’ parental rights and allowing the children
to be adopted by their foster parents is in the children’s best interest. In addition, the
trial court heard evidence that J.B. is unemployed and lacks the financial resources
to care for the children, and that M.L.’s mental health issues prevent her from making
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appropriate decisions for the children and supervising them properly. The trial judge
further heard evidence that M.L.’s mental health issues make her unlikely to be able
to sustain long-term sobriety or to comply with mental health treatment. Amin
testified that returning the children to M.L. would harm them and place them in an
unsafe environment. Prompt and permanent placement of the children in a safe
environment is presumed to be in their best interest. See Tex. Fam. Code Ann. §
263.307(a) (West 2019). As the sole judge of the credibility of the witnesses and the
weight to be given to their testimony, the trial court could reasonably conclude that
termination of appellants’ parental rights was in the best interest of S.J.B. and A.B.
See id. §§ 161.001(b)(2), 263.307(a); see also In the Interest of J.F.C., 96 S.W.3d at
266; Holley, 544 S.W.2d at 371-72.
We conclude that the Department established, by clear and convincing
evidence, that appellants committed the predicate acts enumerated in sections
161.001(1)(D) and (E) and that termination of appellants’ parental rights is in the
best interest of S.J.B. and A.B. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E),
(2); In the Interest of C.A.C., Jr., 2011 WL 1744139, at *1. Having concluded that
the evidence was legally and factually sufficient to support the trial court’s findings
as to subsections 161.001(D) and (E), we need not address issue three, in which
appellants challenge the sufficiency of the evidence that they failed to comply with
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the provisions of a court order that set forth the necessary actions to obtain the return
of the children. See In the Interest of N.G., 2019 WL 2147263, at *4, *6; In the
Interest of C.A.C., Jr., 2011 WL 1744139, at *1; see also Tex. R. App. P. 47.1. We
affirm the trial court’s order terminating appellants’ parental rights.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on May 21, 2019
Opinion Delivered August 8, 2019
Before McKeithen, C.J., Horton and Johnson, JJ.
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