in the Interest of T.G., L.G., and M.G., Children ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00147-CV
IN THE INTEREST OF T.G., L.G.,
AND M.G., CHILDREN
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-99403J-13
----------
MEMORANDUM OPINION 1
----------
Tamara Grant appeals from the trial court’s judgment terminating her
parental rights to her children, Tommy Grant, Luke Grant, and Mary Grant. 2 We
affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).
1
See Tex. R. App. P. 47.4.
2
We use aliases for the children and their relatives throughout this
memorandum opinion. See Tex. R. App. P. 9.8(b)(2). The names used bear no
relation to their legal names.
I. BACKGROUND
On October 7, 2004, Tamara gave birth to Tommy, whose father was Kyle
Grant. Kyle had seven other children with other women and had prior assault
convictions for physically abusing some of these women. Kyle admittedly dealt
heroin. In December 2011, Kyle “spanked” Tommy with a belt to discipline him
for “trouble at school.” Tamara was in a different room at the time, but when
Tommy’s urine was dark the next day, Tamara’s mother called for an ambulance
to take him to the hospital. Tommy was in a lot of pain and had injuries to his
arm, his thighs, and his buttocks. The Texas Department of Family and
Protective Services (DFPS) received a referral to investigate whether Tommy
had been physically abused or neglectfully supervised by Tamara or Kyle. The
investigator, Ekaterina Gonzalez, determined that there was reason to believe
Kyle had abused Tommy but was unable to determine if Tamara had neglectfully
supervised him. As a result of this incident, Tommy walked with a limp. Tamara
asserted that Tommy’s limp was not caused by the spanking incident but agreed
that Tommy was afraid of Kyle.
Tamara and Kyle’s relationship apparently was sporadic because Tamara
gave birth to Luke on March 15, 2012, but Luke’s father was John Bates. Bates
also had a criminal history with prior convictions for theft of property, burglary of a
vehicle, possession of marijuana, criminal mischief, and assault. In any event,
Kyle, who had remained a part of Tamara’s and Tommy’s lives, began physically
abusing Tamara in 2012. In one instance, Kyle slapped Tamara while she was
2
pregnant with Luke. Tamara had another child with Kyle—Mary—on
February 9, 2013.
On September 19, 2013, DFPS received another referral that Tamara was
neglectfully supervising the children. It was reported to DFPS that Tommy and
Luke were wandering the apartment complex where they lived and that their
apartment emitted a strong marijuana odor. The DFPS investigator, Latrecia
Woods, spoke to Tommy at school. He told her that he and Luke were allowed
to play outside the apartment by themselves while Tamara stayed inside and that
he was concerned for Mary because she had been “gone for a little while.”
Tommy told Woods that Tamara told him that Mary would return “when [Tamara]
was able to buy Pampers.” The manager of the apartment complex confirmed
that Tamara’s apartment smelled of marijuana, Tommy frequently was
unsupervised, and Tommy was able to climb a fence to get to a vacant lot behind
the complex. She also recounted that Tamara was not paying rent and that she
would be evicted. Tamara admitted to Woods that she allowed Tommy and Luke
to play alone outside and would supervise them from a couch inside the
apartment. Tamara told Woods that Mary was living with her godmother, Susan
Kramer, and had been with her for approximately three months. Kramer had an
open DFPS case regarding her children at the time. Tamara admitted to Woods
that she had been diagnosed with postpartum depression and had previously
thought of committing suicide, but denied having any current suicidal thoughts.
3
Her gynecologist had referred her to a psychiatrist for the depression, but
Tamara never followed up on this recommendation.
DFPS entered into a safety plan with Tamara, who agreed that she and
her mother, who was living with Tamara and the children, would supervise the
children better. As part of the plan, Tamara agreed to tell DFPS if she moved or
was evicted. Tamara was evicted in October 2013, but she did not inform DFPS.
Tamara and Tommy began living at the same apartment complex with Tamara’s
friend, Kim White, who had a DFPS case pending regarding her children. 3 Kyle
also lived at the same apartment complex. When Woods located Tamara, she
admitted that she had failed to inform DFPS about the eviction and that she had
smoked marijuana during this time. Woods gave her a drug test, which showed
that Tamara had been using amphetamines. Tamara explained that the
marijuana must have been “laced” with amphetamines. Tamara never followed
up on the referrals for drug treatment.
Because Woods was concerned about Tamara’s drug use and lack of
stability, she entered into a new safety plan with Tamara and placed Tommy with
Kyle’s mother and Mary and Luke with Adams and Lewis. A few days later on
October 25, 2013, Woods met with Tamara, Kyle’s mother, Adams, and Lewis. It
was decided that Tamara and the children would live with Tamara’s great-
3
After the eviction, Luke began living with his godparents, Cindy Adams
and Diane Lewis. DFPS later determined that Adams had a prior DFPS case
“that involved a child death.”
4
grandmother, Eunice Goode, who would “help [Tamara] out with parenting” in
order for Tamara to show that she “could parent her kids.” But when Woods
visited the home about three weeks later, Goode said that the arrangement was
not working and that Tamara and the kids had to move out of her home:
[S]he was tired of [Tamara] . . . not watching the kids like she was
supposed to. [Goode] said the time frame that the kids had been
there, they had already broken off a knob that goes to a heater that
was in the bathroom. They had tor[n] up a couple of mini blinds.
She was concerned that [Tamara] stays up all night on the
phone and then sleeps all day. [Goode] has to constantly, you
know, yell at [Tamara] about changing the kids’ diapers, changing
their clothes. There was concerns with [Tamara] staying in the same
clothes for, like, two days straight without bathing, sneaking out of
the house.
....
. . . There was concern with [Tamara] leaving the house at
night when [Goode] was asleep with the kids, not watching them
when they were outside. . . .
....
Both kids were—had soaking wet diapers on. It was just—you
could tell it was just a lot of hostility going in the house.
Tamara believed Goode was “being old, was being fussy and . . . didn’t want
anybody coming to her house.” Tamara “stated she should be able to leave the
home if she feels like she needs a break.”
Based on this visit, Woods found reason to believe that Tamara had
neglectfully supervised the children. Because no other relatives were willing to
allow Tamara and the children to live with them, DFPS filed a suit affecting the
5
parent-child relationship on November 19, 2013, seeking the emergency removal
of the children and termination of Tamara’s, Kyle’s, and Bates’s parental rights if
reunification could not be achieved. The same day, the trial court entered an
emergency order naming DFPS as the children’s temporary sole managing
conservator.
DFPS entered into several service plans with Tamara during the case,
requiring her to take or refrain from certain actions in order to be reunited with
her children:
1. Be screened for mental illness and “maintain” any medication
prescribed for any diagnosed condition;
2. Participate in family counseling with Tommy;
3. Participate and successfully complete individual counseling;
4. Attend parenting classes;
5. Attend all scheduled, weekly visitations with the children;
6. Obtain “safe, stable and appropriate housing”;
7. Not be involved in or associate with those who are involved in
criminal activity;
8. Submit to random drug testing; and
9. Provide DFPS with proof of employment “by offer letter or pay stubs
on a biweekly basis.”
Tamara complied with DFPS’s drug-testing requests, obtained a mental-health
screening, and completed individual counseling. However, Tamara never
obtained appropriate housing, failed to consistently take the medication
6
prescribed for her bi-polar disorder, sporadically saw the children and stopped
her visits altogether in December 2014, did not successfully complete counseling
with Tommy, and never provided DFPS proof of her claimed employment.
DFPS proceeded to trial on its termination petition on April 14, 2015. The
day before the trial, the children’s attorney ad litem reported to the trial court that
she was in favor of terminating the parental rights of Tamara, Bates, and Kyle.
The court-appointed special advocate, Alicia Hooper, likewise filed a report with
the trial court recommending that their parental rights be terminated. Bates filed
an affidavit of relinquishment of his parental rights as to Luke.
At trial, Tamara testified that termination would “hurt” Tommy and that she
loved her children. She stated that her problems with visiting the children were a
result of her job with a commercial construction company because the company
would not allow her to miss work to visit with her children during the day. She
was, however, able to take a week off of work for a “family emergency” in Dallas
when her uncle died. At trial, she did not know her uncle’s last name, only that
he had been married to her aunt. Tamara admitted that she never provided
DFPS with proof of her employment and that she had not found appropriate
housing. She explained that she could not obtain suitable housing because she
was required to pay $700 before she would be allowed to rent a governmentally
subsidized apartment. Tamara asserted that she worked at least forty hours a
week at $8 to $10 per hour but that she had to buy food, gas, and “personal
items every month.” Tamara did not have a car and did not have a driver’s
7
license. She admitted that she had been given eighteen months to comply with
the service plans. Although Tommy had behavioral problems, Tamara had no
plan for how to handle this. Although she was aware of Kyle’s “lengthy criminal
history,” Tamara continued to desire Kyle’s involvement in the children’s lives.
Hooper testified that she supported termination, which comported with her
pretrial recommendation. Hooper based her assessment on noted behavioral
improvements in Mary, Luke, and Tommy since Tamara stopped visiting them.
Hooper further noted that Tamara’s nickname for Tommy was “Fat Boy” and that
Luke’s was “Retard.” The children were happy in their foster home. A DFPS
conservatorship worker, Dereka Davis, testified that she also believed
termination would be in the children’s best interests. Davis based her
assessment on Tamara’s failure to have any contact with her children for four
months, refusal to take her medication for her bi-polar disorder, disinterest in
parenting her children, lack of a plan to deal with Tommy’s problems, continued
desire for Kyle’s involvement, and failure to secure stable housing for the
children. The trial court found by clear and convincing evidence that termination
of Tamara’s parental rights was in the best interests of the children and that she
had
. . . knowingly placed or knowingly allowed the children to
remain in conditions or surroundings which endanger the physical or
emotional well-being of the children;
. . . engaged in conduct or knowingly placed the children with
persons who engaged in conduct which endangers the physical or
emotional well-being [of] the children;
8
. . . failed to comply with the provisions of a court order that
specifically established the actions necessary for the mother to
obtain the return of the children who have been in the permanent or
temporary managing conservatorship of [DFPS] for not less than
nine months as a result of the children’s removal from the
parent . . . .
See Act of Mar. 30, 2015, 84th Leg., R.S., S.B. 219, ch. 1, § 1.078, sec. 161.001,
2015 Tex. Sess. Law Serv. 1, 18–20 (West) (to be codified as an amendment to
Tex. Fam. Code Ann. § 161.001). 4 The trial court also terminated Kyle’s and
Bates’s parental rights to the children. Only Tamara appeals from the
termination order.
II. LEGAL CONSIDERATIONS IN PARENTAL-TERMINATION CASES
We strictly scrutinize termination proceedings and construe involuntary
termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d 796, 802
(Tex. 2012). Parental rights, although constitutional in dimension, are not
absolute. See In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001(b), 161.206(a) (West 2014).
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.” Id. § 101.007 (West 2014). “[C]onjecture is not enough.” E.N.C.,
384 S.W.3d at 810. Therefore, to justify termination of a parent-child
4
For the remainder of this memorandum opinion, we will cite to the new
section number as it will appear in the Family Code.
9
relationship, DFPS 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. Both elements must be established;
termination may not be based solely on the best interest of the child as
determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—Fort Worth
2012, no pet.).
III. DISCUSSION
A. STANDARD AND SCOPE OF REVIEW
We need not exhaustively detail the relevant evidence supporting the
termination decision if we are affirming the fact-finder’s decision. A.B.,
437 S.W.3d at 500. In evaluating the evidence for legal sufficiency in parental-
termination cases, we determine whether the evidence is such that a fact-finder
could reasonably form a firm belief 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
and resolve any disputed facts in favor of the finding if a reasonable fact-finder
could have done so. Id.
In reviewing the evidence for factual sufficiency, we give due deference to
the fact-finder’s findings and do not supplant the verdict with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the
10
entire record, a fact-finder could reasonably form a firm conviction or belief that
the parent violated a subsection of section 161.001(b)(1) and that the termination
of the parent-child relationship would be in the best interest of the child. Tex.
Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
B. SECTION 161.001(b)(1): PROHIBITED ACTIONS
In issue one, Tamara challenges the legal and factual sufficiency of the
evidence to support each section-161.001(b)(1) ground alleged by DFPS and
found by the trial court. Here, the trial court concluded that clear and convincing
evidence supported three of section 161.001(b)(1)’s prohibited actions: (b)(1)(D),
(b)(1)(E), and (b)(1)(O). We need only conclude that one of the prohibited
actions listed in section 161.001(b)(1) was supported by sufficient evidence.
In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Tamara asserts that the evidence was legally and factually insufficient to
support the finding that she engaged in conduct or knowingly placed Tommy,
Luke, and Mary with persons who engaged in conduct that endangered their
physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(E).
Tamara focuses her argument on the fact that her only “pattern of conduct” was
the failure to secure appropriate housing based on her financial situation: “Apart
from the initial allegation of neglectful supervision, there isn’t a single allegation
of an act by [Tamara] that involves violence, mistreatment, failure to protect, or a
conscious pattern of conduct that might have jeopardized her children.”
11
To “endanger” means to expose a child to loss or injury or to jeopardize a
child’s emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex.
1996). Under subsection E, the evidence must show the endangerment was the
result of the parent’s conduct, including acts, omissions, or failure to act.
In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
Termination must be based on more than a single act or omission, and there
must be a voluntary, deliberate, and conscious course of conduct by the parent.
Id. While endangerment often involves physical endangerment, the statute does
not require that conduct be directed at a child or that the child actually suffers
injury; rather, the specific danger to the child’s well-being may be inferred from
the parent’s misconduct alone. Boyd, 727 S.W.2d at 533. A parent’s conduct
that subjects a child to a life of uncertainty and instability endangers the child’s
physical and emotional well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.—
Fort Worth 2013) (en banc op. on reh’g), aff’d, 437 S.W.3d 498. “Domestic
violence, want of self-control, and propensity for violence may be considered as
evidence of endangerment.” In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—
Houston [14th Dist.] 2003, no pet.). Evidence of criminal conduct, convictions, or
imprisonment is relevant to a review of whether a parent engaged in a course of
conduct that endangered the well-being of the child. A.S. v. Tex. Dep’t of Family
& Protective Servs., 394 S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no
pet.). Finally, we may consider conduct that occurred outside the children’s
presence, including conduct before a child’s birth. Walker v. Tex. Dep’t of Family
12
& Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied).
The evidence shows that Tamara consistently insisted that Kyle be
involved in the children’s lives. She held to this belief even after discovering that
Kyle had assaulted several of his prior paramours, sold and used heroin, hit
Tommy so hard with a belt that he had to be taken to the hospital, and
completely failed to visit the children or comply with the required services after
the children were removed. Tamara allowed Tommy and Luke to wander their
apartment complex unsupervised, and Tommy was able to climb a fence to get
into an adjacent vacant lot. Tamara’s apartment smelled of marijuana smoke.
Kyle physically abused Tamara while she was pregnant with Luke. After Tamara
gave birth to Luke, she did not take him home with her from the hospital but sent
him to live with Adams and Lewis, Luke’s godparents whom Tamara had recently
met, because she chose to continue to live with Kyle. Luke stayed with Adams
and Lewis for the first six months of his life. Adams had been involved in a prior
DFPS case “that involved a child death.” Mary had spent a significant portion of
her short life with her godmother, Kramer, who also had a pending DFPS case
regarding her children. Tamara failed to supervise the children after the four of
them moved in with Goode and was unable to protect them. Although Tamara
testified that she was not involved in criminal activity, she admitted that she
smoked marijuana and she tested positive for amphetamine use. Further, while
the termination case was pending, Tamara began dating a man whom she knew
13
to have a criminal history, as did Kyle and Bates. Tamara’s lifestyle subjected
the children to instability, and Davis testified that Tamara was not raising the
children but parceled them out to be raised by friends. Even after the children
were in the possession of DFPS and Tamara had been ordered to attend weekly
visitations with them, she continued to deprive her children of stability and
consistency as a parent by failing to attend visitation for four months.
We conclude that this evidence was legally and factually sufficient to allow
the trial court as fact-finder to determine that Tamara engaged in conduct or
knowingly placed Tommy, Luke, and Mary with persons who engaged in conduct
that endangered their physical or emotional well-being. See In re A.A.M.,
Nos. 01-14-00798-CV & 01-14-00801-CV, 2015 WL 1247268, at *3–4 (Tex.
App.—Houston [1st Dist.] Mar. 17, 2015, no pet.) (recognizing parental drug use
and abusive conduct by a family member may endanger a child’s well-being
under subsection (b)(1)(E)); In re E.R., No. 12-14-00171-CV, 2014 WL 6977810,
at *7 (Tex. App.—Tyler Dec. 10, 2014, no pet.) (mem. op.) (holding evidence
sufficient to support termination under subsection (b)(1)(E) because mother
continued to have relationships with known criminals during pendency of
termination case); In re C.J.S., 383 S.W.3d 682, 689–90 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (finding sufficient evidence of endangerment under
subsection (b)(1)(E) based on parent’s positive drug tests, poor judgment, and
lack of impulse control); In re J.T.G., 121 S.W.3d at 131 (holding evidence legally
sufficient to support endangerment findings because parent had history of
14
domestic violence, drug abuse, and criminal conduct). We need not address the
sufficiency of the evidence to support termination under subsections (b)(1)(D) or
(b)(1)(O), and we overrule issue one. See Tex. R. App. P. 47.1; A.V.,
113 S.W.3d at 362.
C. SECTION 161.001(b)(2): BEST INTEREST
In her second issue, Tamara argues that the evidence was factually
insufficient to support the trial court’s finding that termination of her parental
rights was in the best interest of the children. There is a strong presumption that
keeping a child with a parent is in the child’s best interest. In re R.R.,
209 S.W.3d 112, 116 (Tex. 2006). But prompt and permanent placement of the
child in a safe environment is also presumed to be in the child’s best interest.
Tex. Fam. Code Ann. § 263.307(a) (West 2014).
We review the entire record to determine the child’s best interest.
In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be
probative of both the subsection-(1) ground and the best-interest determination.
C.H., 89 S.W.3d at 28; see E.C.R., 402 S.W.3d at 249. Nonexclusive factors that
the trier of fact in a termination case may also use in determining the best
interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
15
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
E.N.C., 384 S.W.3d at 807 (citing 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”). These
factors are not exhaustive, and strong or undisputed evidence of just one factor
may be sufficient in a particular case to support a finding that termination is in the
best interest of the child. C.H., 89 S.W.3d at 27.
The evidence at trial showed that Tommy, Luke, and Mary had behavioral
and developmental issues when DFPS removed them from Tamara’s
supervision. All three improved after the removal and made significant
improvements after Tamara stopped visiting them in December 2014. At the
time of trial, Tamara had not secured an appropriate living situation for her three
children, was not taking her medications, and did not know how to deal with
Tommy’s behavioral issues. Tommy was far behind in school and needed a
“very strong parental environment.” Hooper testified that Tamara gave Tommy
too much responsibility in caring for Luke and Mary and did not provide the
16
structured environment Tommy needed. Tommy, Luke, and Mary were happy in
their foster home. Although Tamara testified that termination of her parental
rights was not in the children’s best interest because it would “hurt” Tommy, the
children’s attorney ad litem, Hooper, and Davis believed termination of Tamara’s
parental rights was in their best interest. Davis stated that the children should
not be returned to Tamara “due to the lack of stability in either parents’ lives and
just their unwillingness to do whatever is necessary to get their children back.”
And as we recounted previously, the clear and convincing evidence showed that
Tamara engaged in conduct or knowingly placed Tommy, Luke, and Mary with
persons who engaged in conduct that endangered their physical or emotional
well-being. See E.C.R., 402 S.W.3d at 249 (“Many of the reasons supporting
termination under [section 161.001(b)(1)] also support the trial court’s best-
interest finding.”).
Considering the relevant factors, we hold that in light of the entire record
and giving due consideration to evidence that the trial court reasonably could
have found to be clear and convincing, the trial court reasonably could have
formed a firm belief or conviction that termination of Tamara’s parental rights was
in the children’s best interest. See In re T.G.R.-M., 404 S.W.3d 7, 16–17 (Tex.
App.—Houston [1st Dist.] 2013, no pet.) (holding evidence sufficient to support
best-interest finding, even though mother received some support services, where
child was thriving in foster care and mother had not demonstrated ability to
provide stable environment or emotional support); In re Z.C., 280 S.W.3d 470,
17
476 (Tex. App.—Fort Worth 2009, pet. denied) (holding “stability and
permanence” found in foster care and children’s improving condition sufficient to
support best-interest finding); Smith v. Tex. Dep’t of Protective & Regulatory
Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.) (“[I]n considering
the best interest of the child, evidence of a recent turn-around in behavior by the
parent does not totally offset evidence of a pattern of instability and harmful
behavior in the past.”). We overrule issue two.
IV. CONCLUSION
Because legally and factually sufficient evidence supported the trial court’s
finding that Tamara violated section 161.001(b)(1)(E) and factually sufficient
evidence supported the trial court’s finding that termination of Tamara’s parental
rights was in the children’s best interest under section 161.001(b)(2), we overrule
Tamara’s issues. We therefore affirm the trial court’s judgment.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.
DELIVERED: July 16, 2015
18