in the Interest of M.F.L. AKA M.F.O. and D.W.L. AKA D.W.O., Children ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00256-CV
IN THE INTEREST OF
M.F.L. AKA M.F.O. AND D.W.L. AKA D.W.O., CHILDREN,
From the County Court at Law
Ellis County, Texas
Trial Court No. 91121CCL
MEMORANDUM OPINION
Christy L. appeals from a judgment that terminated the parent-child relationship
between her and her children, M.F.L. and D.W.L.1 After hearing all the evidence, the trial
court found by clear and convincing evidence that Christy (1) knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that endanger
the children, and (2) engaged in conduct or knowingly placed the children with persons
who engaged in conduct that endangers the children; (3) failed to comply with a court
order; (4) used a controlled substance; and (5) constructively abandoned D.W.L. TEX.
FAM. CODE ANN. § 161.001 (1) (D) (E) (N)(O) (P) (West Supp. 2012). The trial court further
1The children are also known as M.F.O and D.W.O. In this opinion we will refer to them only as M.F.L.
and D.W.L.
found by clear and convincing evidence that termination of the parental rights of Christy
was in the best interest of the children. We affirm.
Background Facts
Christy and Russell O. are the biological parents of M.F.L. and D.W.L. Christy has
two adult children and a ten year-old son who lives with his father. At the time of trial,
M.F.L was four years-old and D.W.L. was almost two years-old. D.W.L. tested positive
for methamphetamines at the time of his birth. He was placed with Russell’s aunt and
uncle where he has lived since his birth. M.F.L. was removed at that time and placed
with Christy’s sister and brother-in-law, and she continues in that placement. Christy
has a long history with the Texas Department of Family and Protective Services. Christy
admitted using methamphetamines while pregnant with D.W.L. and while caring for
M.F.L. Christy failed to comply with her court-ordered services, and she tested positive
for drugs. Christy was arrested for theft and possession of a controlled substance after
the children were removed from her care.
Russell admitted to being a registered sex offender. Russell also admitted to using
methamphetamines. Russell completed the court-ordered services, but he did not seek
possession of the children. The trial court did not terminate Russell’s parental rights to
M.F.L. and D.W.L. at the conclusion of the trial. The trial court ordered that the current
placements for M.F.L. and D.W.L. be named as each child’s permanent managing
conservator. Russell was named as a possessory conservator of M.F.L and D.W.L.
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Abandonment of Pleading
In the first issue, Christy argues that the trial court erred when it terminated her
parental rights and not the rights of Russell after the Department abandoned the position
of having only one of the parent’s rights terminated. Whether a pleading has been
abandoned is a question of law which we review de novo. In re C.C.J., 244 S.W.3d 911,
921 (Tex.App.-Dallas 2008, no pet.). Formal amendment of the pleadings is not required
in order to show abandonment. Id. A stipulation may form the basis for abandonment.
Id.
A stipulation is an agreement, admission, or concession made in a judicial
proceeding by the parties or their attorneys respecting some matter incident thereto. Id.
In construing a stipulation, a court must determine the intent of the parties from the
language used in the entire agreement, examining the surrounding circumstances,
including the state of the pleadings, the allegations made therein, and the attitude of the
parties with respect to the issue. Id. A stipulation should not be given greater effect than
the parties intended, and should not be construed as an admission of a fact intended to
be controverted. Id.
At the close of evidence, the trial court stated:
Okay. I’ll entertain closing argument. Do each of you need a couple
of moments to compose your thoughts? What I’m going to want to know
is if whether I terminate both[,] one or none, I want you to discuss in the
alternatives, depending on what I end up doing on that, what your desires
would be in each of those scenarios. So, if you need a moment to collect
your thoughts, I’ll grant it, or if you’re all ready, I’ll hear closing arguments
now.
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The attorney for the Department took a few moments, and then made her closing
argument. During her closing argument, the attorney for the Department stated that the
Department does not believe it would be in the children’s best interest to terminate one
parent and not the other. The Department went on to state that the other option would
be permanent managing conservatorship of the children. The Department said that if the
trial court chooses this option, the Department recommends placing the least burden as
possible on the managing conservators with significant restrictions on the part of the
parents as the safety concerns have not been alleviated throughout this case.
Christy argues that the Department abandons an absolute termination position
with the stipulation that it does not believe it would be in the children’s best interest to
terminate one parent but not the other and takes a qualified termination position. Christy
further argues that the trial court then terminates her parental rights, but not Russell’s
after the Department abandoned that position and no longer sought that relief from the
trial court.
Christy cites In the Interest of Shaw, in support of her position that the Department
abandoned its position on termination. However, in Shaw, at the outset of a trial seeking
termination of parental rights, the Department specifically acknowledged that it was not
seeking termination of the rights of one party named in the pleadings. In the Interest of
Shaw, 966 S.W.2d 174, 176 (Tex.App. – El Paso 1998, no pet.). In the present case, the
Department argued throughout trial for termination of parental rights. There is no
unequivocal statement by the Department that it is not seeking termination for either
parent. After a request by the trial court to address alternatives if the court chooses to
In the Interest of M.F.L. aka M.F.O. and D.W.L. aka D.W.O., Children Page 4
terminate one, both, or none of the parents, the Department addressed that issue while
maintaining that the Department is seeking termination of both parents. We do not find
that the Department abandoned the position of termination. We overrule the first issue.
Best Interest
In the second issue, Christy argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination is in the children’s best
interest.2 In conducting a legal sufficiency review in a parental termination case:
[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 conclusion 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 be incredible. This does not mean that a court must disregard
all evidence that does not support the finding. Disregarding undisputed
facts that do not support the finding could skew the analysis of whether
there is clear and convincing evidence.
In re J.P.B., 180 S.W.3d 570, 573 (Tex.2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d
256, 266 (Tex.2002)) (emphasis in J.P.B.).
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.... [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
2Christy does not challenge the trial court’s finding as to the termination of her parental rights under TEX.
FAM. CODE ANN. § 161.001 (1) (D) (E) (N)(O) (P) (West Supp. 2012).
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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.
In re J.F.C., 96 S.W.3d 256, 266-67 (Tex.2002) (quoting In re C.H., 89 S.W.3d 17, 25
(Tex.2002)) (internal footnotes omitted) (alterations added).
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 v. Adams, 544 S.W.2d 367, 372 (Tex.1976); In re
S.L., 421 S.W.3d 34, 38 (Tex.App.-Waco 2013, no pet.). The Holley factors focus on the best
interest of the child, not the best interest of the parent. In re S.L., 421 S.W.3d at 38. The
goal of establishing a stable permanent home for a child is a compelling state interest. Id.
The need for permanence is a paramount consideration for a child's present and future
physical and emotional needs. Id.
Because of the age of M.F.L. and D.W.L., they were not able to express their desires;
however, the evidence shows that both children are bonded with their current care-
givers. D.W.L. has never lived with Christy, and has had limited visitation with her.
M.F.L. has a parent-child relationship with her current care-givers. The evidence shows
In the Interest of M.F.L. aka M.F.O. and D.W.L. aka D.W.O., Children Page 6
that D.W.L. tested positive for methamphetamine at birth and was removed from Christy
at that time. Christy admitted using methamphetamines while pregnant with D.W.L.
and while caring for M.F.L. Christy continued to use methamphetamines after the
removal of the children, and tested positive for drug use on more than one occasion.
Christy was arrested on more than one occasion after the removal of the children. After
the removal of the children, Christy was in a relationship with a man who was on parole
for injury to a child, and it was not clear whether she had ended that relationship.
Christy did not complete the service plan ordered by the court and did not
complete the programs to assist her in parenting the children. Christy was not able to
demonstrate that she had stable, suitable housing for the children and that she had a plan
to care for the children. We find that the evidence is legally and factually sufficient to
support the trial court’s finding that termination is in the children’s best interest. We
overrule the second issue.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed December 28, 2016
[CV06]
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