in the Interest of A.D.G., a Child ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00413-CV
IN THE INTEREST OF A.D.G., a Child
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2018PA00632
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Patricia O. Alvarez, Justice
Irene Rios, Justice
Delivered and Filed: December 4, 2019
AFFIRMED
In this parental rights termination case, the trial court terminated Mom’s parental rights to
her child A.D.G. i Mom challenges the trial court’s statutory grounds findings (under subsections
(D), (N), and (O)), but not the best-interest-of-the-child finding. We affirm the trial court’s order.
BACKGROUND
In late March 2018, the Department of Family and Protective Services received a report
alleging neglect by Mom of her child A.D.G. ii Because Mom was hospitalized after a seizure and
there was no one to care for A.D.G., the Department petitioned to remove A.D.G. from the home,
i
To protect the minor’s identity, we use aliases for appellant and the child. See TEX. R. APP. P. 9.8.
ii
Dad did not appeal. We focus our recitation of the facts on those pertaining to Mom and A.D.G. as they relate
to the trial court’s statutory ground (D) and best-interest-of-the-child findings. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D).
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and the trial court granted the petition. In a three-day bench trial, the Department alleged that
Mom knowingly placed or allowed A.D.G. to remain in endangering circumstances, she
constructively abandoned A.D.G., and she failed to complete her service plan. The trial court
found by clear and convincing evidence that Mom’s course of conduct met the grounds in Family
Code section 161.001(b)(1)’s subsections (D), (N), and (O), and terminating Mom’s parental rights
was in A.D.G.’s best interest. Mom appeals.
EVIDENCE REQUIRED, STANDARDS OF REVIEW
The evidentiary standards 1 the Department must meet and the statutory grounds 2 the trial
court must find to terminate a parent’s rights to a child are well known, as are the legal 3 and factual 4
sufficiency standards of review. We apply them here.
With regard to the testifying witnesses, the trial court was the “sole judge[] of the credibility
of the witnesses and the weight to give their testimony.” See City of Keller v. Wilson, 168 S.W.3d
802, 819 (Tex. 2005); cf. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).
BASES FOR TERMINATING MOM’S PARENTAL RIGHTS
A. Statutory Grounds Findings
Mom asserts that the evidence was legally and factually insufficient to support the trial
court’s statutory grounds findings. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (N), (O).
A single statutory ground finding, when accompanied by a best interest of the child finding,
is sufficient to support a parental rights termination order. In re A.V., 113 S.W.3d 355, 362 (Tex.
2003); In re R.S.-T., 522 S.W.3d 92, 111 (Tex. App.—San Antonio 2017, no pet.). But “due
process requires an appellate court to review and detail its analysis as to termination of parental
rights under section 161.001(b)(1)(D) or (E) of the Family Code when challenged on appeal.” In
re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019).
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B. Section 161.001(b)(1)(D)
Subsection (D) allows for termination of a parent’s rights if, before the child was removed,
see In re R.S.-T., 522 S.W.3d at 108 (relevant period), the parent “knowingly placed or knowingly
allowed the child to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child,” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). In the context of
the statute, “‘endanger’ means to expose to loss or injury; to jeopardize.” Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
“[E]ndangerment can be exhibited by both actions and failures to act.” Lumpkin v. Dep’t
of Family & Protective Servs., 260 S.W.3d 524, 528 (Tex. App.—Houston [1st Dist.] 2008, no
pet.). “[A] parent need not know for certain that the child is in an endangering environment;
awareness of such a potential is sufficient.” In re R.S.-T., 522 S.W.3d at 109 (alteration in original)
(quoting In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.)).
“[A] single act or omission” may support terminating a parent’s rights under subsection (D). Id.
(citing In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied)). “Further,
a fact-finder may infer from past conduct endangering the well-being of a child that similar conduct
will recur if the child is returned to the parent.” In re D.J.H., 381 S.W.3d 606, 613 (Tex. App.—
San Antonio 2012, no pet.).
C. Mom’s History, Course of Conduct
The trial court heard testimony from Mom, two Department case workers, two of Mom’s
counselors, and the foster mother. We summarize the evidence pertaining to whether Mom
knowingly placed or knowingly allowed A.D.G. to remain in conditions or surroundings which
endanger[ed A.D.G.’s] physical or emotional well-being.” See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D).
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1. Mom’s Medical History
a. Seizure Disorder
Mom is in her early twenties, she has epilepsy, and she has been having seizures since she
was about three years old. Mom knows that she has tonic-clonic (grand mal) seizures, and she
will be hospitalized if her seizure lasts more than thirty minutes. She knows she will be incoherent
for 15–30 minutes after a seizure. In the roughly five months between A.D.G.’s birth and her
removal from the home, Mom suffered four seizures. In a recent seizure, for the first time, she
went into respiratory failure and had to be intubated.
b. Mental Disorders
Mom denies she has bipolar disorder, but the testifying Qualified Mental Health
Professional confirmed Mom’s diagnoses include bipolar I disorder, post-traumatic stress disorder,
and borderline personality disorder. Mom acknowledged she has wanted to hurt herself, and she
is currently receiving counseling for anxiety, mania, and depression. During the pendency of the
case, Mom has been hospitalized for depression and PTSD at least three times, remaining
hospitalized for about two weeks each time.
2. History of Sexual Abuse, Family Violence
Mom testified she was sexually abused as a child by her grandfather for years, and when
she lives at home, her mother physically and verbally abuses her. Mom attributes her PTSD to the
sexual and physical abuse she has suffered. Despite the family violence, Mom has at least twice
returned home because she had nowhere else to go. Mom stayed at her mother’s house even though
her mother hit her and verbally abused her because “at least I got a roof over my head and I got
food.” Eventually, Mom took A.D.G. and left to stay at a shelter because of family violence from
her mother. But after A.D.G. was removed, Mom went back to live with her mother despite the
abuse because she was “scared to be out on the streets.”
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D. A.D.G.’s Special Needs
A.D.G. was born prematurely at twenty-six weeks, and she was hospitalized in the neonatal
intensive care unit for the first two months of her life. After A.D.G. was allowed to go home,
Mom had difficulty feeding A.D.G. Mom claimed her mother “started force-feeding [A.D.G.]
four ounces when she was just itty-bitty and she just only needed 30 milliliters, and so, she stopped
eating.” Mom tried breastfeeding, but her mother “wouldn’t allow me to.” Because of A.D.G.’s
failure to eat, a surgical procedure placed a gastrostomy tube (G-tube) in her stomach through
which A.D.G. could receive food and medications. See A.L.G.A. v. Tex. Dep’t of Family &
Protective Servs., No. 03-19-00086-CV, 2019 WL 2998587, at *2 n.2 (Tex. App.—Austin July
10, 2019, pet. denied) (mem. op.) (describing a G-tube).
A.D.G. must be given her food and anti-seizure medications through the G-tube on a
precise schedule. She must be fed seven times per day in specific amounts, and she must receive
her three medications twice each day. A.D.G. sometimes pulls out her G-tube, and it must be
immediately replaced to avoid danger to her. See In re G.A.A.-G., No. 14-19-00320-CV, 2019 WL
5107040, at *3 (Tex. App.—Houston [14th Dist.] Oct. 11, 2019, no pet. h.) (mem. op.) (“A prudent
parent who had been trained on the use of a G-tube, as Mother had, would have immediately sought
medical attention when the tube fell out . . . .”). As the foster mother noted, because of A.D.G.’s
very special needs, “you have to watch her 24/7. Somebody has to be with her all the time, all the
time.” The foster mother testified she is a stay-at-home mother, her husband also knows how to
care for A.D.G., and they provide A.D.G. with the full-time care she needs.
E. Basis for Removal
In late March 2018, when A.D.G. was about five months old, Mom was taken to the
hospital after a seizure “because they thought I was having a stroke.” While Mom was at the
hospital, “she was pulling out her I.V.; she wasn’t coherent, [and] she didn’t know where she was
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at” for a few days. Sometime during her hospitalization Mom told the hospital staff that “she was
going to hang the baby from the ceiling fan.”
The hospital called the Department because Mom was very disoriented, she could not care
for A.D.G., and there was no one else to care for the child. The hospital kept A.D.G. at the hospital
for a while because her G-tube was clogged.
Based on its investigation, the Department concluded Mom was neglecting A.D.G., and
the trial court granted the Department’s petition to remove A.D.G. from Mom’s care.
F. Parties’ Arguments
Mom contends the evidence was neither legally nor factually sufficient to support the trial
court’s findings on any of the statutory grounds. With respect to subsection (D), Mom insists
“[t]here was no evidence at trial that [she] wanted to suffer a seizure or that it was her desire or
intention to leave [A.D.G.] without a viable caretaker.”
The Department relates many of the facts given above and argues that Mom was unable to
care for herself, much less A.D.G., and the evidence supports each of the trial court’s findings,
including that under subsection (D).
G. Evidence of Endangering Conditions or Surroundings
Mom emphatically asserts that she does not want to suffer from seizures or neglect A.D.G.,
but that is not the legal question at issue. The issue is whether the trial court could have found by
clear and convincing evidence that Mom “knowingly placed or knowingly allowed [A.D.G.] to
remain in conditions or surroundings which endanger[ed A.D.G.’s] physical or emotional well-
being.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(D); In re R.S.-T., 522 S.W.3d at 108–09. We
note that the conditions or surroundings which might not endanger a healthy twelve-year-old child
could endanger a medically-compromised infant. Cf. In re A.L.M., 300 S.W.3d 914, 919 (Tex.
App.—Texarkana 2009, no pet.) (recognizing that a child’s special needs can affect the minimum
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parenting ability required of the parent—under section 161.003, which is not at issue here—by
opining that “[t]he needier the child, the more able the parent must be”).
The Department did not have to prove that Mom knew for certain that A.D.G. would be
harmed, it just needed to prove that Mom was aware of the potential for harm and allowed A.D.G.
to remain in an endangering environment. See In re R.S.-T., 522 S.W.3d at 109.
Mom knew she had tonic-clonic seizures, she would be unable to care for A.D.G. during
the period of the seizure and for at least 15–30 minutes afterwards, and there was a chance she
could suffer a tonic-clonic seizure without sufficient notice to arrange for suitable care for A.D.G.
Mom also knew her own mother physically and verbally abused her and did not support her in
seeking to get services to support A.D.G. Yet Mom took a two-month-old, medically at-risk
A.D.G. home from the hospital to live in an abusive home environment in which there was no
suitable caretaker for A.D.G. if Mom had a seizure.
Mom knew her mother actively interfered with A.D.G.’s care and would not support Mom
in working services. After A.D.G. received the G-tube, Mom knew A.D.G. had even greater
special needs including feeding and medicating needs, which included a medication to treat
A.D.G.’s seizure disorder. Mom knew her own mother had misfed A.D.G., interfered with Mom’s
care for A.D.G., and was not a suitable caretaker for A.D.G.
By Mom’s own admission, despite the physical and verbal abuse she suffered and the risk
to A.D.G. in that environment, Mom stayed in the home for at least several weeks because “I was
scared to leave and have nowhere to live. And there I knew at least I got a roof over my head and
I got food.”
H. Evidence Supports Subsection (D) Finding
Mom’s upbringing and medical conditions are tragic and heartbreaking. But neither the
trial court nor we can ignore the risk of harm to which Mom exposed A.D.G.—given A.D.G.’s
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very special needs. Mom suffers from PTSD, borderline personality disorder, bipolar I disorder,
and depression—which can be successfully managed by complying with proper medical care—
but there was ample evidence that Mom failed to manage her own health properly. It was the trial
court’s role to evaluate the witnesses’ testimony, including Mom’s admitted thoughts of self-harm
and her statement that she was going to hang A.D.G. from the ceiling fan, in its subsection (D)
finding. See City of Keller, 168 S.W.3d at 819; cf. In re H.R.M., 209 S.W.3d at 108.
Given the evidence, including Mom’s failure to successfully manage her mental health
conditions; her epilepsy and breakthrough seizures; and A.D.G.’s medically fragile state on leaving
the NICU, we conclude there was clear and convincing evidence that Mom knowingly exposed
A.D.G. to the possibility of being left unattended and unsupervised during the period of Mom’s
seizures, and the possibility of some harm from Mom or others during Mom’s post-seizure, mental
disorientation periods. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D); In re R.S.-T., 522 S.W.3d
at 109. Given the evidence of Mom’s suicidal thoughts and her at least momentary intent to hang
A.D.G. from a ceiling fan, there was also clear and convincing evidence that Mom exposed A.D.G.
to the risk of Mom—in a moment of extreme mental confusion or distress—intentionally or
negligently harming A.D.G. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D); In re R.S.-T., 522
S.W.3d at 109.
Again, we recognize that Mom does not wish to suffer from seizures or the multiple mental
illnesses that afflict her. We also recognize that Mom’s properly managed medical conditions
would likely not endanger a healthy, more mature child. But given, inter alia, Mom’s and A.D.G.’s
respective medical conditions, cf. In re A.L.M., 300 S.W.3d at 919, and Mom’s decision to take a
medically fragile A.D.G. into a domestic violence home situation without a backup caregiver, the
trial court could have reasonably formed a firm belief or conviction that Mom knowingly placed
or allowed A.D.G. to remain in an environment that endangered A.D.G.’s physical or emotional
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well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D); In re R.S.-T., 522 S.W.3d at 109. Cf.
In re M.C., 352 S.W.3d 563, 568 (Tex. App.—Dallas 2011, no pet.); In re Z.C.J.L., No. 14-13-
00115-CV, 2013 WL 3477569, at *13 (Tex. App.—Houston [14th Dist.] July 9, 2013, no pet.).
The evidence was legally and factually sufficient to support the trial court’s finding under
subsection (D). See In re R.S.-T., 522 S.W.3d at 109; In re Z.C.J.L., 2013 WL 3477569, at *13;
In re M.C., 352 S.W.3d at 568.
I. Findings under Subsections (N), (O)
“Only one predicate finding under section 161.001(1) is necessary to support a judgment
of termination when there is also a finding that termination is in the child’s best interest.” In re
A.V., 113 S.W.3d 355, 362 (Tex. 2003). Having already determined the evidence was legally and
factually sufficient to support the trial court’s finding under subsection (D), we need not address
the subsections (N) and (O) findings. See TEX. R. APP. P. 47.1; In re A.V., 113 S.W.3d at 362.
J. Best Interest of the Child
The Family Code statutory factors 5 and the Holley factors 6 for the best interest of a child
are well known, but Mom does not challenge the sufficiency of the evidence for the trial court’s
finding that terminating her parental rights is in A.D.G.’s best interest. See TEX. FAM. CODE ANN.
§ 161.001(b)(2).
K. Evidence is Sufficient
Considering all the evidence under the two evidentiary standards, we conclude the trial
court could have formed a firm belief or conviction that terminating Mom’s parental rights to
A.D.G. was in A.D.G.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (b)(2); In re
E.N.C., 384 S.W.3d 796, 807 (Tex. 2012).
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CONCLUSION
Having reviewed the record under the applicable standards of review, we conclude the
evidence was legally and factually sufficient to support the trial court’s findings by clear and
convincing evidence of the subsection (D) ground and that termination of Mom’s parental rights
was in A.D.G.’s best interest. We affirm the trial court’s order.
Patricia O. Alvarez, Justice
1
Clear and Convincing Evidence. If the Department moves to terminate a parent’s rights to a child, the Department
must prove by clear and convincing evidence that (1) the parent’s acts or omissions met one or more of the grounds
for involuntary termination listed in section 161.001(b)(1) of the Family Code, and (2) terminating the parent’s rights
is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002).
The same evidence used to prove the parent’s acts or omissions under section 161.001(b)(1) may be used in
determining the best interest of the child under section 161.001(b)(2). In re C.H., 89 S.W.3d 17, 28 (Tex. 2002); In
re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.); see also TEX. FAM. CODE ANN. § 161.001(b).
The trial court may consider a parent’s past deliberate conduct to infer future conduct in a similar situation. In re
D.M., 452 S.W.3d at 472.
2
Statutory Grounds for Termination. The Family Code authorizes a court to terminate the parent-child relationship
if, inter alia, it finds by clear and convincing evidence that the parent’s acts or omissions met certain criteria. See TEX.
FAM. CODE ANN. § 161.001(b). Here, the trial court found Mom’s course of conduct met the following criteria or
grounds:
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings
which endanger the physical or emotional well-being of the child;
....
(N) constructively abandoned the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for not less than six
months, and:
(i) the department has made reasonable efforts to return the child to the parent;
(ii) the parent has not regularly visited or maintained significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the child with a safe environment,
[and]
(O) 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.
Id. § 161.001(b)(1).
3
Legal Sufficiency. When a clear and convincing evidence standard applies, a legal sufficiency review requires a
court to “‘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.’” In re J.L., 163 S.W.3d 79, 85 (Tex.
2005) (quoting In re J.F.C., 96 S.W.3d at 266). If the court “‘determines that [a] reasonable factfinder could form a
firm belief or conviction that the matter that must be proven is true,’” the evidence is legally sufficient. See id. (quoting
In re J.F.C., 96 S.W.3d at 266).
4
Factual Sufficiency. Under a clear and convincing standard, evidence is factually sufficient if “a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s allegations.” In re C.H., 89 S.W.3d at 25;
accord In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must consider “whether disputed evidence is such that a
reasonable factfinder could not have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96 S.W.3d
at 266; accord In re H.R.M., 209 S.W.3d at 108.
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5
Statutory Factors for Best Interest of the Child. The Texas legislature codified certain factors courts are to use in
determining the best interest of a child, but because Mom does not challenge the trial court’s best interest finding, we
do not recite them here. See TEX. FAM. CODE ANN. § 263.307(b); see In re A.C., 560 S.W.3d 624, 631 (Tex. 2018)
(recognizing statutory factors).
6
Holley Factors. The Supreme Court of Texas identified several non-exclusive factors to determine the best interest
of a child in its landmark case Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976), but because Mom does not challenge
the best interest finding, we do not recite those factors here.
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