in the Interest of Z.I.A.R., G.D.R., R.G.A.R., and R.L.F.R., Children ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00039-CV
IN THE INTEREST OF Z.I.A.R., G.D.R.,
R.G.A.R., AND R.L.F.R., CHILDREN,
From the County Court at Law
Ellis County, Texas
Trial Court No. 89,535 CCL
MEMORANDUM OPINION
Raising one issue, Appellant K.R., the mother of the four children in this case,1
appeals the trial court’s termination of her parental rights after a bench trial.2 We will
affirm.
In a proceeding to terminate the parent-child relationship brought under section
161.001, the Department must establish by clear and convincing evidence two elements:
1
The children and their ages at the time of trial are: Z.I.A.R., age twelve; G.D.R., age ten; and twins R.G.A.R.
and R.L.F.R., age eight.
2The parental rights of G.R. (alias “Gary”), the children’s father, were also terminated, but he has not
appealed. To protect the children’s identity, we will use aliases for their family members in this opinion.
See TEX. R. APP. P. 9.8(b)2).
(1) one or more acts or omissions enumerated under subsection (1) of section 161.001,
termed a predicate violation; and (2) that termination is in the best interest of the child.
TEX. FAM. CODE ANN. § 161.001(1), (2) (West Supp. 2015); Swate v. Swate, 72 S.W.3d 763,
766 (Tex. App.—Waco 2002, pet. denied). The factfinder must find that both elements are
established by clear and convincing evidence, and proof of one element does not relieve
the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370
(Tex. 1976); Swate, 72 S.W.3d at 766. “Clear and convincing evidence” is defined as “that
measure or degree of proof which 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.” Spangler v. Texas
Dep’t of Prot. & Reg. Servs., 962 S.W.2d 253, 256 (Tex. App.—Waco 1998, no pet.).
The parental rights of Appellant and Gary to J.H., their oldest child, had
previously been terminated. J.H. tested positive for drugs at birth because Appellant had
used drugs during her pregnancy. J.H. was three months old when he was removed from
Appellant’s care in 2000 because of concerns of substance abuse, inconsistent
participation in the offered Family Based Safety Services, and lack of stability. During
the case involving J.H., there was lack of cooperation by Appellant and Gary; they were
inconsistent with their participation in their services, their contact with the Department,
and their contact with J.H. Neither Appellant nor Gary completed their services,
resulting in the paternal grandparent receiving permanent managing conservatorship of
the child. Ultimately, J.H. was adopted by his paternal grandmother.
In this case, the twins tested positive for drugs (methamphetamine) at birth.
Appellant admitted that she had relapsed and used drugs while pregnant. The
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Department removed the twins from Appellant’s care but placed Z.I.A.R. and G.D.R. in
a safety placement with Appellant’s father (“Grandfather”). Appellant completed
services, and the children were returned to her care. At the time the children were
returned to her care, she was living with Grandfather.
The Department conducted investigations into medical neglect in 2005 that was
ruled unable to determine, a physical-neglect allegation in 2006 ruled unable to
determine, a neglectful-supervision allegation in 2009 that was ruled out, and a sexual-
abuse allegation that was also ruled out.
Lindsey Warren, a Department Conservatorship Worker, testified that the
Department received an April 26, 2014 referral alleging that Appellant was drinking
alcohol, was falling asleep early during the day and leaving the children unsupervised,
and there were also allegations that she was abusing drugs and leaving the children to
fend for themselves. Appellant was confronted about the allegations and admitted to
marijuana use, but after further testing, Appellant also tested positive for opiates and
methamphetamine. During the Department’s investigation, Appellant submitted to hair
testing that was positive for morphine and heroin. At the conclusion of the Department’s
investigation, Appellant was found “reason to believe” for neglectful supervision. The
children were removed for abuse and neglect on May 29, 2014.
In summary, the evidence shows that Appellant endangered the children through
her history of illegal drug use, domestic violence, and criminal conduct.3 She used drugs
3
Appellant has been arrested for domestic violence and assault. During the pendency of this case,
Appellant was arrested for public intoxication, assault, and criminal mischief, and she was convicted of
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during two pregnancies and during the pendency of the case. She engaged in criminal
conduct during the pendency of the case and while her parental rights were in jeopardy.
Appellant failed to complete the tasks on her service plan—specifically her counseling
and substance-abuse treatment. She failed to be employed and she failed to establish safe
and stable housing for the children. At the time of trial, the evidence demonstrated that
Appellant was continuing to abuse drugs and alcohol and was unable to meet the needs
of the children.
The trial court found the following predicate violations as grounds for
termination: (1) Appellant knowingly placed or knowingly allowed the children to
remain in conditions or surroundings that endangered the children’s physical or
emotional well-being (Family Code subsection 161.001(1)(D)); (2) Appellant engaged in
conduct or knowingly placed the children with persons who engaged in conduct that
endangered the children’s physical or emotional well-being (Family Code subsection
161.001(1)(E)); and (3) Appellant failed to comply with provisions of a court order
specifically establishing actions necessary for the parent to obtain return of the children
(Family Code subsection 161.001(1)(O)). The trial court also found that termination of
Appellant’s parental rights was in the children’s best interest. In its findings of fact and
conclusions of law, the trial court specifically found that appointment of Grandfather as
Permanent Managing Conservator “is not in the children’s best interest.”
In her sole issue, Appellant asserts: “Is there factually sufficient evidence to
assault causing bodily injury (with an offense date of March 1, 2015) and was sentenced to 150 days’
confinement. She spent two months in jail and was given a sentence of time served for all three charges.
Appellant testified that she was arrested again for public intoxication during the pendency of the case.
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support the termination of Appellant’s parental rights and the award of Permanent
Managing Conservator to her sister and her wife?” The trial court’s termination order
appoints the Department as the children’s Permanent Managing Conservator. Appellant
mistakenly asserts that her sister “Kelly” and spouse “Marla” were appointed Permanent
Managing Conservator and contends that Grandfather should have been appointed
Permanent Managing Conservator. Accordingly, we overrule this part of Appellant’s
issue.
As the Department points out, Appellant’s brief does not challenge any of the
three predicate violations for termination. Therefore, the only issue before us is whether
the evidence is factually sufficient to support the trial court’s best-interest finding. While
Appellant’s issue does not mention a legal-sufficiency challenge, her summary of the
argument contends that the evidence is “factually and legally insufficient to support
termination.” Therefore, we will also conduct a legal-sufficiency review of the trial
court’s best-interest finding.
Both legal and factual sufficiency reviews in termination cases must take into
consideration whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction about the truth of the matter on which the petitioner bears the burden
of proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal sufficiency
review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review).
In a legal sufficiency review, 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 its 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
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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.
J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, a court of appeals must give due consideration to
evidence that the factfinder could reasonably have found to be clear and convincing. Id.
[T]he inquiry must be “whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s
allegations.” A court of appeals should consider whether disputed
evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. 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, then the evidence is factually
insufficient.
Id. at 266-67 (footnotes and citations omitted); see C.H., 89 S.W.2d at 25.
In determining the best interest of a child, a number of factors have been
considered, including (1) the desires of the child; (2) the emotional and physical needs of
the child now and in the future; (3) the emotional and physical danger to the child now
and in the future; (4) the parental abilities of the individuals seeking custody; (5) the
programs available to assist these individuals; (6) the plans for the child by these
individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may
indicate the existing parent-child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. This list is not
exhaustive, but simply indicates factors that have been or could be pertinent. Id. The
Holley factors focus on the best interest of the child, not the best interest of the parent.
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Dupree v. Tex. Dep’t Prot. & Reg. Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no
writ). The goal of establishing a stable, permanent home for a child is a compelling state
interest. Id. at 87. The need for permanence is a paramount consideration for a child’s
present and future physical and emotional needs. In re S.H.A., 728 S.W.2d 73, 92 (Tex.
App.—Dallas 1987, writ ref’d n.r.e.) (en banc).
We now turn to the evidence on the best-interest factors.
The Desires of the Children
The children have been in the care of Kelly and Marla (the “Foster Parents”) since
August 11, 2015. Warren testified that the children have indicated in counseling their
desire to remain with the Foster Parents. The notes from their therapist Sarah Buckley-
Taylor clearly reflect the children’s desires to be adopted by the Foster Parents, and the
children also report that they are happy with the Foster Parents.
Grandfather testified that the Foster Parents love the children and are good people,
and he admitted that he had previously recommended his daughter Kelly as a possible
permanent placement option for the children. Marlana Gray, the court-appointed
guardian ad litem for the children from CASA, testified that the children are doing
“fantastic” and that all of their needs are “[a]bsolutely” being met in their current
placement with the Foster Parents.
The Emotional and Physical Needs of the Children Now and in the Future
The Emotional and Physical Danger to the Children Now and in the Future
Evidence of past misconduct or neglect can be used to measure a parent’s future
conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet.
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denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past is often
prologue.”); see also In re V.A., No. 13-06-00237-CV, 2007 WL 293023, at *5-6 (Tex. App.—
Corpus Christi 2007, no pet.) (mem. op.) (considering parent’s past history of unstable
housing, unstable employment, unstable relationships, and drug usage). Often, the best
interest of the child is infused with the statutory offensive behavior. In re W.E.C., 110
S.W.3d 231, 240 (Tex. App.—Fort Worth 2003, no pet.). Particularly when the evidence
shows that the parental relationship endangered the child’s physical or emotional well-
being, evidence of the parental misconduct leading to the removal and subsequent
termination should be considered when reviewing the best interest of the child. In re C.C.,
No. 13-07-00541-CV, 2009 WL 866822, at *10 (Tex. App.—Corpus Christi Apr. 2, 2009, pet.
denied) (mem. op.). A parent’s history, admissions, drug abuse, and inability to maintain
a lifestyle free from arrests and incarcerations are relevant to the best-interest
determination. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.). A
parent’s engaging in criminal conduct endangers the emotional well-being of a child
because of the parent’s resulting incarceration. See Karl v. Tex. Dep’t Prot. & Reg. Servs.,
No. 03-03-00655-CV, 2004 WL 1573162, at *2-3 (Tex. App.—Austin July 15, 2004, no pet.)
(mem. op.); see also In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet.
denied) (“conduct that subjects a child to a life of uncertainty and instability endangers
the physical and emotional well-being of a child”).
Appellant was incarcerated twice during the pendency of this case, failed to
demonstrate stability, and was admittedly unable to care for the children herself at the
time of trial. Conversely, the children are now with family and “are stable in their
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environment.” Based on the evidence of Appellant’s criminal conduct throughout the
lives of the children and during the pendency of this case while her parental rights were
in jeopardy, the trial court could have determined that her incarceration history is
relevant to her ability to meet the children’s present and future physical and emotional
needs and that her incarcerations “makes [their] future uncertain.” In re M.D.S., 1 S.W.3d
190, 200 (Tex. App.—Amarillo 1999, no pet.).
Appellant failed to comply with her court-ordered services and therefore failed to
address her drug use, failed to complete counseling, failed to obtain employment or
stable housing, and failed to refrain from committing crimes. Because Appellant failed
to take advantage of any of the programs designed to address the factors that make her a
dangerous parent, the trial court could have concluded that she would not seek out such
programs in the future. Based on the evidence of Appellant’s failure to comply with her
court-ordered services, and in particular her drug-treatment services, the trial court was
free to infer that her failure to complete her services indicate a continued danger to the
children. See In re B.A., No. 04-13-00246-CV, 2013 WL 4679089, at *1 (Tex. App.—San
Antonio Aug. 28, 2013, no pet.) (mem. op.) (parent’s failure to complete services directly
related to reasons for child’s removal indicates continued danger to child.).
Appellant admitted to having an ongoing substance-abuse problem. Gray
testified that Appellant is not ready or able to care for the children, and Gray was
concerned with Appellant’s continuing to color and cut her hair in violation of court
orders because by doing so, the “hair … test won’t show up, honestly;” therefore, Gray
opined that Appellant had never demonstrated “complete honesty” about “totally
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getting off of drugs,” indicating a “red flag.” Gray expressed a concern that Appellant
has not demonstrated a “long-term ability to stay clean from drugs and being arrested.”
Based on the evidence of ongoing drug abuse, including before and after the children’s
birth, the trial court could have reasonably formed a belief or conviction that
Appellant is unable to provide a safe environment for the children, cannot meet the
children’s present and future physical and emotional needs, and that her continuing care
of the children presents a present and future danger to their safety. See In re C.A.J., 122
S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.) (noting that parent’s continued
drug use poses emotional and physical danger to child now and in future); In re S.N., 272
S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.) (parent’s illegal drug use is relevant to
determining present and future risk to child’s physical and emotional well-being.).
In resolving these two factors in favor of termination, the trial court could have
credited the undisputed evidence that Appellant: (1) has a lengthy history of drug and
alcohol abuse; (2) endangered the children by using drugs while pregnant; (3) failed to
provide the children with stability throughout their lives; (4) exposed the children to
domestic violence; (5) engaged in criminal conduct throughout the lives of the children
and during the pendency of this case; (6) failed to comply with court-ordered services,
including drug treatment; (7) continued to use drugs throughout the pendency of the
case; and (8) failed to obtain employment and stable housing. This evidence of
Appellant’s endangering conduct, past inability to refrain from criminal conduct, and
drug use supports an inference that because of her past actions, Appellant’s future
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conduct will continue to pose a danger to the children’s emotional and physical well-
being.
The Parenting Ability of the Individuals Seeking Custody
The Programs Available to Assist the Party Seeking Custody
That a parent has poor parenting skills and “was not motivated to learn how to
improve those skills” is evidence supporting a finding that termination is in the
child’s best interest. Wilson v. State, 116 S.W.3d 923, 925 (Tex. App.—Dallas 2003, no pet.).
In reviewing the parental abilities of a parent, a factfinder can consider the parent’s past
neglect or past inability to meet the physical and emotional needs of their children. D.O.
v. Tex. Dep’t of Human Servs., 851 S.W.2d 351, 356 (Tex. App.—Austin 1993, no writ),
disapproved on other grounds by J.F.C., 96 S.W.3d at 267 & n.39. “[E]vidence of [parent’s]
repeated incarcerations suggests […] that his parenting skills are seriously suspect.” In
re A.W., No. 06-07-00118-CV, 2008 WL 360825, at *3 (Tex. App.—Texarkana Feb. 12, 2008,
no pet.) (mem. op.). Further, the factfinder can infer from a parent’s failure to take the
initiative to avail herself of the programs offered to her by the Department that the parent
“did not have the ability to motivate herself to seek out available resources needed…now
or in the future.” W.E.C., 110 S.W.3d at 245.
Appellant’s brief admits that she lacks “full parental skills” and that she has relied
upon her father (Grandfather) and her sister Kelly for support. At trial, Appellant
admitted that she had “struggled” in the past to provide the children with a safe and
drug-free home. Grandfather admitted that without his financial assistance, Appellant
would have a “hard time” getting by.
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During the Department’s case involving J.H., Appellant failed to comply with
Family Based Safety Services, resulting in J.H.’s removal, and then when she failed to
comply with services in the legal case, it resulted in the child being placed in the
permanent conservatorship of his paternal grandmother. During the Department’s case
involving just the twins, Appellant completed services and the children were returned to
her care. In this case, Appellant failed to comply with her court-ordered services and
failed to address her drug use, failed to complete counseling, failed to obtain employment
or stable housing, and failed to refrain from committing crimes. From this evidence, the
trial court could have determined that Appellant was not motivated to learn to improve
those skills, supporting its best-interest determination. And from the evidence of
Appellant’s multiple arrests and incarcerations, to include during the pendency of this
case, the trial court could have concluded that Appellant’s parenting skills are “seriously
suspect.” A.W., 2008 WL 360825, at *3.
In determining that Appellant has poor parenting abilities and cannot meet the
physical and emotional needs of the children, the trial court could have considered the
previously discussed evidence of Appellant’s: (1) history of drug abuse; (2) drug abuse
while pregnant with J.H. and the twins; (3) failure to avail herself of services; (4) engaging
in criminal conduct during the pendency of the case while her parental rights were in
jeopardy; and (5) failure to secure employment and safe and stable housing. D.O., 851
S.W.2d at 356.
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The Plans for the Children by the Individuals or by the Agency Seeking Custody
The Stability of the Home or Proposed Placement
The factfinder may compare the parent’s and the Department’s plans for the
children and consider whether the plans and expectations of each party are realistic or
weak and ill-defined. Id.
A parent’s failure to show that he or she is stable enough to parent a child for any
prolonged period entitles the factfinder “to determine that this pattern would likely
continue and that permanency could only be achieved through termination and
adoption.” In re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *9 (Tex. App.—
Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.). A factfinder may also consider
the consequences of its failure to terminate parental rights and that the best interest of the
child may be served by termination so that adoption may occur rather than the
impermanent foster-care arrangement that would result if termination did not occur.
D.O., 851 S.W.2d at 358. The goal of establishing a stable, permanent home for a child is
a compelling state interest. Dupree, 907 S.W.2d at 87.
The Department’s plan for the children at trial was termination of parental rights
and adoption. Gray’s plan was to keep the children in the family, specifically with the
Foster Parents, “who have been stable for long periods of time. … And I recommend that
they stay in a stable environment with the family.”
The Foster Parents testified that they intend to adopt the children should they
become available for adoption, and should they adopt the children, they plan to continue
to foster contact between the children and Appellant, if appropriate.
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Appellant’s plan, if the children were returned to her care, is to live with
Grandfather (her father). Appellant testified that if the trial court were to place the
children with Grandfather, her plan would be to go to his home every day to help take
care of the children. Grandfather admitted that, if the children are placed with him, he
would need Appellant’s assistance.
Kelly testified that she did not believe that Grandfather (also her father) was
capable of helping Appellant provide a safe and appropriate home for the children
because “they’ve already tried doing that once before.” Marla expressed concern about
Grandfather’s ability to care for the children, in part because of his anger issues.
Grandfather’s anger issues were echoed by Gray in her summation and by the notes from
Z.I.A.R.’s therapist where Z.I.A.R. complains about Grandfather being “so angry all the
time.” Marla related that Grandfather is impatient with the children and “yells a lot.”
Marla was additionally concerned because Grandfather has continuously put Appellant’s
best interest ahead of the children’s best interest.
Warren and Gray expressed concern because of Grandfather’s health and his
continued belief that Appellant is capable of caring for the children despite the fact that
she has not completed her services. Further concern was that, despite Appellant’s
testimony that she was addicted to heroin all of 2014, Grandfather said that he “never got
the impression” that Appellant was using drugs during the time that he was the
children’s caregiver.
Gray testified that the children need stability more than anything. Warren testified
that it is in the children’s best interest to remain in the safe and stable environment that
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they have been in with the Foster Parents, the “most stable environment that they’ve ever
been in.” Appellant agreed that the children needed a “stable home” in the future. Kelly
testified that her intent is to “make sure that the kids have a stable place to live and be
and grow up.” Warren testified that the Foster Parents are approved and licensed foster
parents.
The trial court could have considered Appellant’s loosely defined plan, her history
of instability throughout the children’s lives and the case, and concerns related to her
ongoing drug use and criminal conduct and compared it to the Department’s plan of
adoption and concluded that permanency and stability for the children could be achieved
only through termination of Appellant’s parental rights so that the children may be
adopted.
Appellant’s principal contention that termination is not in the children’s best
interest is the Department’s plan of placing the children with the Foster Parents with the
goal of adoption. The only evidence that Appellant points to as support for her
contention is Marla’s testimony that the children sometimes call her “Uncle” and that the
Foster Parents do not consistently take the children to church. Marla testified that she
and Kelly have spoken with the children’s therapist about the children being raised by
them and that the therapist replied that there were no issues with the children that needed
“particular attention and concern.”
Acts or Omissions of the Parent Indicating that Parent-Child Relationship Is Not Proper
Excuses for Acts or Omissions
The evidence discussed above indicates that Appellant’s relationship with the
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children is not a proper one, and Appellant has not offered any excuses for her acts or
omissions on appeal.
Considering all the evidence in relation to the Holley factors in the light most
favorable to the trial court’s best-interest finding, we hold that a reasonable factfinder
could have formed a firm belief or conviction that termination of Appellant’s parental
rights was in the children’s best interest. Viewing all the evidence in relation to the Holley
factors, we hold that a reasonable factfinder could have reasonably formed a firm belief
or conviction that termination was in the children’s best interest. The evidence is legally
and factually sufficient on the best-interest finding, and we overrule Appellant’s sole
issue. The trial court’s order of termination is affirmed.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray concurs in the judgment which terminates Appellant’s parental
rights to the four children and appoints the Department Permanent Managing
Conservator. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed August 3, 2016
[CV06]
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