in the Interest of D.A. and S.G., Children ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00213-CV
IN THE INTEREST OF D.A. AND
S.G., CHILDREN
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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 325-548977-13
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MEMORANDUM OPINION1
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Appellant R.T. (Mother) appeals the trial court’s order terminating her
parental rights to D.A. (Darcy) and S.G. (Stacy).2 In four issues, she contends
that the evidence is legally insufficient to support the trial court’s findings
supporting termination. We affirm.
1
See Tex. R. App. P. 47.4.
2
To protect the identity of the children, we use aliases. See Tex. Fam.
Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8(b)(2).
Background Facts
Mother gave birth to Darcy in 2010 and to Stacy in 2012. Darcy and Stacy
have different fathers. In July 2014, the Department of Family and Protective
Services (the Department) filed a petition asking for termination of Mother’s
parental rights to Darcy and Stacy if reunification could not be achieved. In the
petition, the Department also sought the termination of the fathers’ parental
rights.
To the petition, the Department attached an affidavit. The affidavit stated
that Mother had been diagnosed with a personality disorder,3 that she was a
long-time drug abuser, that she had recently picked up the children from a
daycare facility while under the influence of methamphetamine, and that she had
left with them from the daycare facility while they were not secured by seatbelts
or car seats.
In response to the petition, the trial court signed an order in which it named
the Department as the children’s temporary sole managing conservator and
authorized the Department to place the children with B.T., their maternal
grandmother (Grandmother). Later, the court appointed Grandmother to be the
children’s possessory conservator while the Department’s suit remained pending.
Denise Hamilton, a caseworker with the Department, became involved with
Mother and the children in August 2014. According to Hamilton, the Department
3
The evidence at trial established that Mother has been diagnosed as
bipolar.
2
initially removed the children from Mother’s custody (and placed them with
Grandmother) because she had struck one of them during an altercation with one
of their fathers and because she had some “drug history.” Mother resisted the
children’s removal from her care, and police officers had to help the Department
complete the removal.
Through a service plan, the Department instructed Mother to complete
parenting classes; to take a drug-abuse assessment, which would determine
whether she needed prolonged treatment; to be subject to random drug testing;
to attend all scheduled visits with the children; and to participate in individual
counseling. Hamilton reviewed these services with Mother, and Mother
appeared to understand what the Department was asking her to do. But
Hamilton did not believe at that time that Mother was willing to address the
Department’s concerns because Mother denied striking her child and denied any
drug use.
Over the course of the case, the Department asked Mother approximately
twenty-five times to submit to a drug test, and the trial court twice ordered drug
testing, but she refused to take a drug test. Mother went to one session of
individual counseling but did not go again.
The Department set up visitation between Mother and the children on a
weekly basis at Mother’s request, but she first visited with them several months
after the Department had removed them from her care. After Mother’s first visit
with the children, she visited only occasionally, and she sometimes failed to
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attend the visits without prior cancellation. When she did visit them, she
sometimes became agitated and cursed in front of them because of her
frustration with the Department.
In February 2015 and again in June 2015, the trial court signed an order in
which the court stated that Mother had not adequately complied with the service
plan. The Department’s final service plan evaluation, which the Department filed
with the court in May 2015, showed that Mother had not completed any services.
A bench trial occurred in July 2015. Mother had not visited with the
children in more than a month before the trial. Although Mother spoke with
Hamilton on the morning of the trial and stated that she would attend the trial,
she did not do so. A week before the trial, she made a statement that she was
“done with [Child Protective Services],” which Hamilton interpreted as meaning
that Mother was not going to participate in any services or take Hamilton’s calls.
Mother also stated that she planned on taking the children away from
Grandmother and leaving Texas.
Hamilton asked Mother, who was thirty years old at the time of trial, where
she was living, and for months, Mother would not tell her. About a week before
the trial, Mother gave Hamilton her address, but Hamilton did not visit Mother
there because Mother told Hamilton that there was “no reason for [her] to come
out.” Mother never provided Hamilton with proof that Mother had a job.
Hamilton asked the trial court to terminate Mother’s parental rights to the
children because Mother had not visited with them and had not completed her
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services and because Grandmother was prepared to adopt them. Since the
children’s removal from Mother’s care, Hamilton visited Grandmother’s home
eleven or twelve times. Concerning Grandmother, Hamilton testified, “She
[makes] sure [the children have] food [and] shelter. She takes them to day care.
[Darcy] has neurological stuff going on. She takes her to the doctor to find out,
you know, what [is] going on. [Darcy] needed new glasses. [Grandmother]
makes sure that they have everything they [need].”
Grandmother was the only witness at trial other than Hamilton. She
testified that she had been involved with Darcy (who was five years old at the
time of the trial) and Stacy (who was two years old) throughout their lives. In
fact, Grandmother explained that the children had been living with her by
Mother’s consent just before their removal from Mother’s care but that Mother
had picked them up at the daycare facility, had backed into Grandmother’s truck,
and had sped away with the children while they were not secured with seatbelts
or car seats. Grandmother called the Department, and the Department removed
the children from Mother’s care soon thereafter.
Since then, Mother and Grandmother communicated with each other
through text messaging, but Mother often threatened to “get the girls.” Mother
has attacked Grandmother twice. For example, in May 2014, Mother physically
attacked Grandmother while Mother was holding Stacy. During the attack,
Mother dropped Stacy. Although Stacy did not sustain physical injuries other
than minor scratches, she became very afraid. Grandmother declined to ask for
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Mother’s criminal prosecution. The next morning, Mother again became upset,
and she slapped and pushed Darcy. Mother admitted that she was using
methamphetamine at that time, and Grandmother found drug paraphernalia in
Mother’s car.
According to Grandmother, when Mother uses methamphetamine, she
becomes antsy, angry, and vulgar. Grandmother noticed Mother engaging in
these behaviors approximately two weeks before the trial began, and
Grandmother believed that Mother was using drugs soon before the trial began.
Grandmother testified that she would be concerned for the children’s
safety if the trial court returned them to Mother’s care. She explained, “I believe
that she does not watch them even inside of the apartment. I know that she lets
them go outside of the apartment complex by themselves. In my heart, I am
afraid that she would rather hurt the children than allow them to come back to
me.”
Grandmother testified that the children share a room and that they enjoy
singing, coloring, and bike-riding. Concerning the progress that the children had
made since being placed in her care, Grandmother explained,
When they first came they were very quiet. If there was any kind of
loud noise, [Stacy], which is the youngest one, would immediately go
up to [Darcy] for protection . . . . Now there could be a boom and
that little one doesn’t even flinch. They are happy, they laugh, they
giggle, they play, they dance, and those were not the things that
they did before.
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Grandmother opined that the children would not be able do these things if Mother
regained custody of them, and Grandmother stated that it is in the children’s best
interest to remain in her care. Grandmother testified that if the trial court
terminated the parents’ rights to the children, she would adopt them, raise them
the “best [she] can,” love them, and provide for their needs.
At the trial’s conclusion, the trial court terminated Mother’s parental rights
to Darcy and Stacy, named the Department as the children’s permanent sole
managing conservator, and authorized the Department to arrange an adoption
with Grandmother.4 Mother brought this appeal.
Legal Sufficiency
Through four issues, Mother contends that the trial court erred by
terminating her parental rights because the evidence is legally insufficient to
support grounds for termination under the family code. In a termination case, the
State seeks not just to limit parental rights but to erase them permanently—to
divest the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except the child’s right to inherit. Tex. Fam.
Code Ann. § 161.206(b) (West 2014); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985). Consequently, “[w]hen the State seeks to sever permanently the
relationship between a parent and a child, it must first observe fundamentally fair
procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v.
4
The trial court also terminated the fathers’ parental rights; the fathers have
not appealed.
7
Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)). We strictly
scrutinize termination proceedings in favor of the parent. In re E.N.C., 384
S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d
at 20–21.
Termination decisions must be supported by clear and convincing
evidence. See Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2015); Tex.
Fam. Code Ann. § 161.206(a); E.N.C., 384 S.W.3d at 802. “[C]onjecture is not
enough.” E.N.C., 384 S.W.3d at 810. Due process demands this heightened
standard because “[a] parental rights termination proceeding encumbers a value
‘far more precious than any property right.’” E.R., 385 S.W.3d at 555 (quoting
Santosky, 455 U.S. at 758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256,
263 (Tex. 2002). Evidence is clear and convincing if it “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 (West 2014); E.N.C.,
384 S.W.3d at 802.
For a trial court to terminate a parent-child relationship, the Department
must establish by clear and convincing evidence that the parent’s actions satisfy
one ground listed in family code section 161.001(b)(1) and that termination is in
the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384
S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). In evaluating the
evidence for legal sufficiency in parental termination cases, we determine
whether the evidence is such that a factfinder could reasonably form a firm belief
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or conviction that the challenged ground for termination was proven. In re J.P.B.,
180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most
favorable to the finding and judgment. Id. We resolve any disputed facts in favor
of the finding if a reasonable factfinder could have done so. Id. We cannot
weigh witness credibility issues that depend on the appearance and demeanor of
the witnesses because that is the factfinder’s province. Id. at 573–74. And even
when credibility issues appear in the appellate record, we defer to the factfinder’s
determinations as long as they are not unreasonable. Id. at 573.
Basis for termination under section 161.001(b)(1)
In her first through third issues, Mother contends that the evidence is
legally insufficient to support termination on any of the grounds stated in section
161.001(b)(1) of the family code. The trial court terminated Mother’s parental
rights on the grounds that she had knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endangered their physical or
emotional well-being, had engaged in conduct or knowingly placed them with
persons who engaged in conduct that endangered their physical or emotional
well-being, and had failed to comply with provisions of a court order that
established actions necessary to achieve their return to her care. See Tex. Fam.
Code Ann. § 161.001(b)(1)(D), (E), (O).
Section 161.001(b)(1)(E) allows a trial court to terminate parental rights if
the court finds that the parent has engaged in conduct or knowingly placed a
child with persons who engaged in conduct that endangered the physical or
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emotional well-being of the child. Id. § 161.001(b)(1)(E). Under this subsection,
the relevant inquiry is whether evidence exists that the endangerment was a
direct result of the parent’s conduct, including acts and failures to act. A.S. v.
Tex. Dep’t of Family & Protective Servs., 394 S.W.3d 703, 712 (Tex. App.—El
Paso 2012, no pet.); In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth
2003, no pet.).
“Endanger” means to expose a child to loss or injury or to jeopardize a
child’s emotional or physical health. In re M.C., 917 S.W.2d 268, 269 (Tex.
1996); A.S., 394 S.W.3d at 711. Thus, endangerment constitutes more than a
threat of metaphysical injury or the possible ill effects of a less-than-ideal family
environment; however, it is not necessary that the parent’s conduct be directed at
the child or that the child suffers injury. M.C., 917 S.W.2d at 269; A.S., 394
S.W.3d at 712. Termination under section 161.001(b)(1)(E) must be based on
more than a single act or omission; a voluntary, deliberate, and conscious course
of conduct by the parent is required. J.T.G., 121 S.W.3d at 125.
A parent’s exposure of a child to domestic violence may support a finding
that the parent endangered the child’s physical or emotional well-being. In re
L.E.S., No. 06-15-00015-CV, 2015 WL 4914743, at *5 (Tex. App.—Texarkana
Aug. 18, 2015, no pet.); In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth
2007, no pet.). Similarly, a parent’s use of illegal drugs, including doing so while
knowing that parental rights are in jeopardy, supports termination under
subsection 161.001(b)(1)(E). See In re J.O.A., 283 S.W.3d 336, 345 (Tex.
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2009); In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet.
denied); J.T.G., 121 S.W.3d at 125 (stating that “[d]rug addiction and its effect on
a parent’s life and ability to parent may establish an endangering course of
conduct”); see also In re R.S., No. 02-15-00137-CV, 2015 WL 5770530, at *5
(Tex. App.—Fort Worth Oct. 1, 2015, no pet.) (mem. op.) (concluding that there
was endangering conduct because a mother “continued to use
methamphetamines, fully aware that doing so could . . . prevent her from
reuniting with her children”).
Also as part of the endangering-conduct analysis, a court may consider a
parent’s failure to complete a service plan. See In re R.F., 115 S.W.3d 804, 811
(Tex. App.—Dallas 2003, no pet.); see also In re M.B., No. 02-15-00128-CV,
2015 WL 4380868, at *12 (Tex. App.—Fort Worth July 16, 2015, no pet.) (mem.
op.). Further, the risk of emotional harm from a parent’s missed visits with a child
may support a finding of endangerment. See In re M.D., No. 02-14-00305-CV,
2015 WL 729506, at *6 (Tex. App.—Fort Worth Feb. 19, 2015, no pet.) (mem.
op.); In re R.M., No. 07-12-00412-CV, 2012 WL 6163100, at *4 (Tex. App.—
Amarillo Dec. 11, 2012, no pet.) (mem. op.). Finally, as a general rule, conduct
that subjects a child to a life of uncertainty and instability endangers the child’s
physical and emotional well-being. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied).
Considering the evidence in the light most favorable to the trial court’s
decision to terminate Mother’s parental rights, we conclude that the court could
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have reasonably formed a firm belief or conviction that Mother engaged in
conduct that endangered the children’s physical or emotional well-being. See
Tex. Fam. Code Ann. § 161.001(b)(1)(E); J.P.B., 180 S.W.3d at 573.
Specifically, the trial court could have rationally based its endangerment finding
on the evidence that Mother has a history of acting violently while around the
children (once with one of their fathers, once with Grandmother, and once with
Darcy);5 that she has a history of using illegal drugs (as established by
Grandmother’s testimony and as indicated by her refusal to submit to drug tests
while the case was pending in the trial court);6 that she made minimal efforts to
comply with provisions in her service plan while stating that she was “done with
CPS”; that she did not regularly visit the children, sometimes missed visits with
them without warning, and had angry outbursts in their presence during visits;
5
On appeal, Mother appears to concede that she has been violent in the
past, yet she argues that “[n]o evidence was presented that . . . if the children
were placed with [Mother], such an environment would continue.” But a
factfinder may infer from past conduct endangering a child’s well-being that
similar conduct will recur if the child is returned to the parent. In re M.R.J.M., 280
S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g).
6
Mother emphasizes that in the trial court, no “failed drug test was
produced.” The trial court, however, could have inferred from Mother’s refusal to
take drug tests that she was using drugs. See In re K.C.B., 280 S.W.3d 888, 895
(Tex. App.—Amarillo 2009, pet. denied). Mother also argues that Grandmother’s
testimony concerning Mother’s drug use was not credible because it was self-
serving and not corroborated, but we must defer to the trial court’s implicit
determination that Grandmother was credible. See J.P.B., 180 S.W.3d at 573;
J.D.S. v. Tex. Dep’t of Family Protective Servs., 458 S.W.3d 33, 43 (Tex. App.—
El Paso 2014, no pet.) (“The trier of fact was the judge of witness credibility and
we will not encroach on that territory.”).
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that she threatened to take the children from Grandmother and abscond from the
state; that she once sped the children away from their daycare without securing
them; and that she did not adequately monitor them at her apartment complex
while she possessed them.
Based on these facts and the remaining evidence in the record, under the
authority cited above, we conclude that the evidence is legally sufficient to
support the trial court’s finding that Mother engaged in conduct that endangered
the children’s physical or emotional well-being. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(E); J.P.B., 180 S.W.3d at 573. Therefore, we overrule Mother’s
second issue. Because the Department must prove only one ground under
section 161.001(b)(1) to support termination, we decline to analyze whether the
evidence is legally sufficient to support the trial court’s findings under subsections
(D) and (O) of that section, and we overrule Mother’s first and third issues. See
Tex. R. App. P. 47.1; In re K.S., 448 S.W.3d 521, 545 n.24 (Tex. App.—Tyler
2014, pet. denied); In re D.D.G., 423 S.W.3d 468, 475 (Tex. App.—Fort Worth
2014, no pet.).
Best interest
In her fourth issue, Mother argues that the evidence is legally insufficient to
show that termination of her parental rights to Darcy and Stacy is in their best
interest. See Tex. Fam. Code Ann. § 161.001(b)(2). We review the entire record
to determine a child’s best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex.
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2013). The same evidence may be probative of both the subsection
161.001(b)(1) ground and best interest. Id. at 249.
Nonexclusive factors that a factfinder may use in determining the best
interest of a child include the desires of the child, the emotional and physical
needs of the child now and in the future, the emotional and physical danger to
the child now and in the future, the parental abilities of the individuals seeking
custody, the programs available to assist these individuals to promote the best
interest of the child, the plans for the child by these individuals or by the agency
seeking custody, the stability of the home or proposed placement, the acts or
omissions of the parent which may indicate that the existing parent-child
relationship is not a proper one, and any excuse for the acts or omissions of the
parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402
S.W.3d at 249 (stating that in reviewing a best interest finding, “we consider,
among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807.
In addition to the evidence summarized above that supports the trial
court’s finding that Mother endangered the children, the record establishes that
while the case was pending in the trial court, Mother’s acts did not evidence any
motivation or desire for her to reunite with the children. Hamilton testified that
when she first reviewed the service plan with Mother, Mother did not appear to
be willing to address the Department’s concerns about the children. Mother did
not participate in services in any significant way, and although she was aware of
the trial that would permanently impact her rights concerning the children, she did
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not attend it. In contrast, the testimony of Hamilton and Grandmother
established that Grandmother wants to adopt the children, that they are thriving
in her care, that she provides for their essential needs, and that she sought their
protection after Mother took them from the daycare facility. The trial court could
have reasonably found that the children’s emotional and physical needs would be
better met by Grandmother, that Grandmother has better parental abilities and
superior plans for the children, that she has a more stable home, and that
Mother’s acts show that her parental relationship with the children is not proper.
See Holley, 544 S.W.2d at 372. Viewing all of the evidence in the light most
favorable to the trial court’s termination decision, we conclude that the court
could have rationally formed a firm belief or conviction that termination of
Mother’s parental rights is in the children’s best interest. See Tex. Fam. Code
Ann. § 161.001(b)(2); J.P.B., 180 S.W.3d at 573; Holley, 544 S.W.2d at 372. We
overrule Mother’s fourth issue.
Conclusion
Having overruled all of Mother’s issues, we affirm the trial court’s judgment
terminating her parental rights to Darcy and Stacy.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
DELIVERED: December 10, 2015
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