in the Interest of R.M., B.M., and N.M., Children ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-15-00040-CV
IN THE INTEREST OF R.M., B.M., AND N.M., CHILDREN,
From the County Court at Law No. 1
Johnson County, Texas
Trial Court No. D201300117
MEMORANDUM OPINION
Carrie M. appeals from a judgment that terminated the parent-child relationship
between her and her children, R.M., B.M., and N.M.1 After hearing all the evidence, the
trial court found by clear and convincing evidence that Carrie (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. TEX. FAM. CODE ANN. § 161.001 (1)
(D) (E) (West Supp. 2012). The trial court further found by clear and convincing evidence
that termination was in the best interest of the children. We affirm.
1The trial court’s order of termination also terminates the parental rights of Jason Long, Lewis Green, and
Unknown Father; however, they are not parties to this appeal.
Facts
At the time of trial, R.M. was 15 years-old, B.M. was 7 years-old, and N.M was
almost 2 years-old. The Texas Department of Family and Protective Services began an
investigation in January 2013 at the time N.M. was born, and the investigation revealed
that Carrie had a history of substance abuse. The Department recommended Family
Based Services at that time. A subsequent safety plan required the children to live with
Carrie’s mother, Lawanna Pruitt, and prohibited Carrie from having unsupervised
contact with the children.
Sergeant Richard Hogan testified that he has been to the residence where Carrie
and Lawanna lived on multiple occasions in response to calls. Sergeant Hogan stated
that he had concerns with drug use and fighting at the home. Sergeant Hogan responded
to a call at the home on April 23, 2013, and there were allegations that Carrie and N.M,
who was less than a year old at the time, were punched by a friend of Carrie’s. Sergeant
Hogan later learned that Carrie was not allowed to be with the children unsupervised.
Sergeant Hogan again responded to a call at the home on July 8, 2013, and he made
an arrest of a person at the residence for possession of drug paraphernalia. Sergeant
Hogan returned to the address on July 10, 2013, with workers from the Department.
When they arrived at the residence, R.M. and B.M. showed them used syringes in the
trash can. Sergeant Hogan collected those syringes, and they tested positive for
methamphetamine. Sergeant Hogan testified that the children had access to those
syringes containing methamphetamine.
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Kayce Farmer with the Department testified that she became involved with the
family after the birth of N.M. Carrie admitted using methamphetamine while she was
pregnant with N.M. Pursuant to the safety plan, Carrie was not allowed unsupervised
contact with the children. Farmer testified that Carrie violated the safety plan by having
unsupervised contact with the children, and Carrie also violated the safety plan by her
admitted use of narcotics. A strand of N.M.’s hair tested positive for the presence of
methamphetamine and amphetamine. A strand of B.M.’s hair tested positive for the
presence of amphetamine.
Carrie testified at trial and admitted to using methamphetamine, cocaine, and
marijuana. She stated that she used drugs while her children were in the home with her
and that she used drugs while pregnant with N.M. and while breast feeding N.M. Carrie
said that the syringes found by Sergeant Hogan did not belong to her, but she did admit
to using methamphetamine on that day. Carrie stated that she had unsupervised visits
with the children because her mother, Lawanna, had to be at work. Carrie testified that
she completed parenting classes, that she attended all scheduled visitation with the
children after their removal, and that she is currently employed.
Standard of Review
In six issues Carrie argues that the evidence is legally and factually insufficient to
support the trial court’s findings on each of the grounds for termination. Only one
predicate act under section 161.001(1) is necessary to support a judgment of termination
in addition to the required finding that termination is in the child's best interest. In re
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A.V., 113 S.W.3d 355, 362 (Tex.2003). 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
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).
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Endangerment
In the third and fourth issues, Carrie argues that the evidence is legally and
factually insufficient to support the trial court’s finding that she engaged in conduct or
knowingly placed her children with persons who engaged in conduct that endangered
the physical and emotional well-being of the children. Section 161.001 (E) of the Texas
Family Code allows termination of the parent-child relationship if the parent, “engaged
in conduct or knowingly placed the child with persons who engaged in conduct which
endangers the physical or emotional well-being of the child.” TEX. FAM. CODE ANN.
161.001 (E) (West Supp. 2012).
"Endanger" means "to expose to loss or injury; to jeopardize." Texas Department of
Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). A parent may be found to have
engaged in conduct which endangers a child even if that conduct is not directed toward
the child. Texas Department of Human Services v. Boyd, 727 S.W.2d at 533; In re J.J.S., 272
S.W.3d 74, 78 (Tex. App.-Waco 2008, no pet.). Termination under subsection
161.001(1)(E) must be based on more than a single act or omission. In re J.J.S., 272 S.W.3d
at 78. The requisite endangerment may be found if the evidence shows a course of
conduct by the parent which has the effect of endangering the child. Texas Department of
Human Services v. Boyd, 727 S.W.2d at 534; In re J.J.S., 272 S.W.3d at 78.
A parent's drug use can also qualify as a voluntary, deliberate, and conscious
course of conduct endangering the child's well-being. See In re C.A.B., 289 S.W.3d 874,
885 (Tex. App.-Houston [14th Dist.] 2009, no pet.). A parent's use of narcotics and its
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effect on his or her ability to parent may qualify as an endangering course of conduct. In
re, J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
Carrie admitted to using methamphetamine while pregnant with N.M. and while
breast feeding N.M. Both R.M. and B.M. were in her care at the time of her admitted drug
use. In July 2013, there was a safety plan in place that provided Carrie was not to have
unsupervised visitation with the children; however, Carrie admitted to using
methamphetamine at that time while the children were with her in the home
unsupervised. R.M. and B.M. were aware of the drug use and showed Sergeant Hogan
used syringes that contained methamphetamine. Carrie admitted to drug use in 2014,
after an emergency removal of the children and the appointment of the Department as
temporary managing conservator of the children. Carrie did not submit to drug testing
as requested by the Department on more than one occasion. See In re C.R., 263 S.W.3d
368, 374 (Tex.App. – Dallas 2008, no pet.) (The trial court could reasonably infer parent
avoided taking the drug tests because she was using drugs.).
The record shows that during the period of time Carrie admitted to drug use, the
children were exposed to other persons who used drugs, that the children were exposed
to altercations, and that the children were involved in altercations. N.M. tested positive
for the presence of methamphetamine and amphetamine, and B.M. tested positive for the
presence of amphetamine. The evidence supports a conclusion that drug use adversely
affected Carrie’s ability to parent. See In re D.W.J., 394 S.W.3d 210, 221(Tex.App.-Houston
[1st Dist.) 2012, no pet.). We find that the evidence is legally and factually sufficient to
support the trial court’s finding that Carrie engaged in conduct that endangered the
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physical and emotional well-being of the children. We overrule the third and fourth
issues. Because we find that evidence is legally and factually sufficient to support the
trial court’s finding of a predicate act pursuant to Section 161.001(1) (E), we need not
reach the first and second issues.
Best Interest
In the fifth and sixth issues, Carrie complains that the evidence is legally and
factually insufficient to support the trial court’s finding that termination is in the best
interest of the children. 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.
R.M. currently resides at the Willow Bend Center, a treatment center for boys with
behavioral issues. R.M. has expressed a desire to return home to his mother. R.M.’s
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therapist at Willow Bend testified that R.M. has a history of abuse and that he has extreme
anger and defiant behaviors. The therapist stated that R.M. needs therapy and structure.
He cannot be alone with other children. The therapist recommends that R.M. stay in his
current placement.
B.M. currently resides in a foster home and has expressed a desire to return home
to his mother. B.M. receives weekly counseling sessions in his current placement. B.M.
has made comments concerning cutting his sister, N.M., and watching her bleed. He has
exhibited inappropriate sexual behavior and requires supervision around other children.
The Department’s goal for B.M. is adoption.
N.M. is currently residing with her paternal aunt. N.M. is too young to express her
desire regarding placement. N.M. is a toddler who requires supervision. N.M.’s paternal
aunt is willing to adopt her.
Carrie successfully completed parenting classes and other services requested by
the Department. She did not submit to random drug testing as requested by the
Department. Carrie testified at the time of trial she had been employed for less than a
month. Carrie is currently married, but does not reside with her husband. She moved
seven times during the pendency of the case. Carrie testified that she had obtained
proper housing and transportation for her and the children. However, she testified that
her boyfriend paid the rent on her house as well as her car payment and insurance. Carrie
does not have a valid driver’s license. Carrie did not provide evidence of being able to
provide a stable home for the children.
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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 Carrie’s parental rights
was in the best interest of R.M., B.M., and N.M. 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 R.M., B.M., and N.M.’s best interest. The
evidence is legally and factually sufficient on the best-interest finding, and we overrule
issues five and six.
Conclusion
We affirm the trial court’s order terminating the parental right of Carrie to her
children R.M., B.M., and N.M.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 4, 2015
[CV06]
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