in the Interest of C.M., a Child ( 2022 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00177-CV
IN THE INTEREST OF C.M., A CHILD
From the 77th District Court
Limestone County, Texas
Trial Court No. CPS-382-A
MEMORANDUM OPINION
The mother of C.M. (Mother) appeals the trial court’s judgment terminating her
parental rights. We will affirm.
Background
Mother and C.M.’s father (Father) left C.M. in the care of Father’s great-aunt
(Aunt) in December 2014 when C.M. was approximately two weeks old. The
Department of Family and Protective Services (the Department) removed C.M. from
Aunt’s custody in April 2021 after Aunt’s dementia became a danger to C.M. Mother
had no contact with C.M. in the two years prior to removal, but was aware of Aunt’s
worsening condition. After a bench trial, the trial court found by clear and convincing
evidence that Mother’s actions were in violation of Sections 161.001(b)(1)(F) and (O) of
the Family Code and that termination was in C.M.’s best interest. See TEX. FAM. CODE
ANN. §§ 161.001(b)(1)(F) and (O). Mother then filed the present appeal. 1
Issues
Mother presents the following issues:
1) The Department presented no evidence that Mother failed to
support C.M. in accordance with her ability.
2) The Department presented factually insufficient evidence that
Mother failed to complete her services.
3) The trial court’s rejection of Mother’s confession-and-avoidance
plea under section 161.001(d) is contrary to the great weight and
preponderance of the evidence.
Mother does not contest the trial court’s finding that termination was in C.M.’s
best interest.
Standard of Review
In order to terminate a parent’s rights, the Department must establish by clear
and convincing evidence that termination is in the child’s best interest and that legal
grounds under Section 161.001(b) of the Family Code exist for the termination of those
rights. See In re J.F.-G., 627 S.W.3d 304, 311 (Tex. 2021). Only one predicate finding
under Section 161.001(b) is required. Id. at 312. Clear and convincing evidence is “the
measure or degree of proof that will produce in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegations sought to be established.” TEX. FAM.
CODE ANN. § 101.007.; see also In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
1
Father voluntarily relinquished his parental rights and is not part of this appeal.
In re C.M. Page 2
In a factual-sufficiency review in a termination case, we must
weigh disputed evidence contrary to a finding against all the evidence in
its favor. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). We consider whether
the disputed evidence is such that a reasonable factfinder could not have
resolved it in the finding's favor. Id. The evidence is factually insufficient
if, in light of the entire record, the disputed evidence a reasonable
factfinder could not have credited in a finding's favor is so significant that
the factfinder could not have formed a firm belief or conviction that the
finding is true. Id.In reviewing for factual sufficiency, however, we must be careful
not to usurp the factfinder's role. In re A.B., 437 S.W.3d 498, 503 (Tex.
2014). The factfinder is the sole arbiter of witness credibility. In re J.O.A.,
283 S.W.3d 336, 346 (Tex. 2009). In a bench trial, the trial judge is the
factfinder who weighs the evidence, resolves evidentiary conflicts, and
evaluates the demeanor and credibility of witnesses. In re R.J., 579 S.W.3d
97, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). Because the
trial judge saw the witnesses firsthand, we must give him or her due
deference, notwithstanding the heightened factual-sufficiency standard.
In re J.S., 584 S.W.3d 622, 634 (Tex. App.—Houston [1st Dist.] 2019, no
pet.).
In re K.H., No. 10-21-00073-CV, 2021 WL 4080261, at *3-4 (Tex. App.—Waco Sept. 8,
2021, pet. denied).
Issue One
The Department does not address the termination of Mother’s rights under
Section 161.001(b)(1)(F). Because we find sufficient evidence to support termination
under Section 161.001(b)(1)(O), we need not address Mother’s first issue. See J.F.-G., 627
S.W.3d at 312 (only one predicate finding under Section 161.001 paired with a finding
that termination is in a child’s best interest is sufficient to uphold a parental
termination).
In re C.M. Page 3
Issue Two
Mother asserts that the record before the trial court was factually insufficient to
support a finding that she failed to complete court-ordered services.
AUTHORITY
Section 161.001(b)(1)(O) provides that a trial court may terminate the parent-
child relationship if the parent
failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the
child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for
not less than nine months as a result of the child's removal from the parent
under Chapter 262 for the abuse or neglect of the child. . . .
TEX. FAM. CODE ANN. § 161.001(b)(1)(O).
DISCUSSION
The family service plan in this case required Mother to remain drug-free and to
submit to drug testing, which Mother acknowledged during her testimony. However,
Mother tested positive for illegal substances even after completing various drug
programs. The trial court, as the arbiter of witness credibility, was entitled to disbelieve
Mother’s testimony that she had not used drugs after the Department filed its petition
for termination. The record is factually sufficient to support a determination that
Mother violated the family service plan by failing to remain drug-free.
The family service plan additionally required Mother to establish a safe and
stable home, “free of any persons or behaviors that would be a danger to [C.M.].”
Viewing the evidence in the light most favorable to the verdict, Mother was living rent-
In re C.M. Page 4
free with her boyfriend and his parents at the time of trial. If C.M. was returned to her,
Mother intended to move C.M. into the household. Father testified: “[The boyfriend]
does drugs and robs people. He’s a bad person.” The record is factually sufficient to
support a determination that Mother violated the family service plan by not
establishing a safe and stable home that was free of persons or behavior that would be a
danger to C.M.
The family service plan additionally required Mother to strengthen her parenting
skills. However, Mother was unable to produce a parenting assessment result that
indicated it would be safe to return C.M. to her custody despite being provided the
opportunity to complete the assessment on at least two occasions. The record is
factually sufficient to support a determination that Mother violated the family service
plan by failing to strengthen her parenting skills.
In light of the entire record, the disputed evidence is such that the trial court
could reasonably find by clear and convincing evidence that Mother failed to comply
with the provisions of a court order by failing to successfully complete the family
service plan. Mother’s second issue is overruled.
Issue Three
In her third issue, Mother asserts that the trial court erred in not finding that she
had establish a confession-and-avoidance defense under Section 161.001(d). TEX. FAM.
CODE ANN. § 161.001(d).
AUTHORITY
Section 161.001(d) provides:
In re C.M. Page 5
A court may not order termination under Subsection (b)(1)(O) based on
the failure by the parent to comply with a specific provision of a court
order if a parent proves by a preponderance of evidence that:
(1) the parent was unable to comply with specific provisions of the
court order; and
(2) the parent made a good faith effort to comply with the order
and the failure to comply with the order is not attributable to any fault of
the parent.
TEX. FAM. CODE ANN. § 161.001(d).
DISCUSSION
Mother specifically addresses this issue as it relates to the failure to provide
stable employment. However, she provides no defense to her continued drug use, her
inability to provide safe housing, or her failure to strengthen her parenting skills.
Mother’s third issue is overruled.
Conclusion
Having overruled Mother’s Second and Third issues, we affirm the judgment of
the trial court.
MATT JOHNSON
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed October 19, 2022
[CV06]
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