in the Interest of D.D.E., a Child ( 2021 )

Opinion filed October 7, 2021
In The
Eleventh Court of Appeals
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No. 11-21-00069-CV
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IN THE INTEREST OF D.D.E., A CHILD
On Appeal from the 118th District Court
Martin County, Texas
Trial Court Cause No. 7356
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother of D.D.E. after a de novo hearing on termination. 1 The mother
filed this appeal. On appeal, she presents three issues in which she challenges the
legal and factual sufficiency of the evidence to support the trial court’s findings. We
affirm the trial court’s de novo order of termination.
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We note that the father’s parental rights were terminated in a prior order of termination.
I. Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2020). To terminate
one’s parental rights, it must be shown by clear and convincing evidence that the
parent has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id.
In this case, the trial court found that Appellant had committed two of the acts
listed in Section 161.001(b)(1)—those found in subsections (D) and (E).
Specifically, the trial court found (1) that Appellant had knowingly placed or
knowingly allowed the child to remain in conditions or surroundings that endangered
the child’s physical or emotional well-being and (2) that Appellant had engaged in
conduct or knowingly placed the child with persons who engaged in conduct that
endangered the child’s physical or emotional well-being. The trial court also found,
pursuant to Section 161.001(b)(2), that termination of Appellant’s parental rights
would be in the best interest of the child.
To determine if the evidence is legally sufficient in a parental termination case,
we review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the
evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or
conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002). We note that the trial court is the sole arbiter of the credibility
and demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (citing In
re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
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But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (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 to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
II. Evidence Presented at Trial
The record shows that the Department of Family and Protective Services (the
Department) first became involved with Appellant and D.D.E. shortly after D.D.E.’s
birth. Due to Appellant’s use of cocaine while pregnant, D.D.E. was born addicted
to cocaine. D.D.E. was removed at that time but was returned to his parents’ care
three months later. Appellant, however, continued to use cocaine while D.D.E. was
in her care; both she and D.D.E. tested positive for cocaine near the time of the intake
in this case, which occurred around the time of D.D.E.’s third birthday. According
to the intake allegations, Appellant was not only using cocaine, but was taking
D.D.E. with her to purchase it. Appellant acknowledged at trial that she had used
cocaine while pregnant, that she had a long history of cocaine use, and that her
conduct had endangered D.D.E.
After D.D.E.’s removal, Appellant participated with the Department in the
creation of a family service plan. The trial court made the family service plan an
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order of the court. Although Appellant complied with many of the provisions of her
service plan, she failed to abstain from the use of cocaine—despite having been to
rehab more than once. The Department’s caseworker testified that Appellant went
through the steps of doing her services but did not change her underlying behaviors.
The record shows that D.D.E. has serious behavioral and cognitive issues that
are attributable to Appellant’s cocaine use. D.D.E.’s behavioral issues include
aggression, defiance, and anger. He continues to need specialized care for these
issues as well as his developmental and intellectual issues.
When D.D.E. was placed in foster care, he was four years old but could not
walk; could not use a fork or spoon; could not dress himself; with the exception of
babytalk, did not speak; was not potty-trained very well; and ate his own feces.
D.D.E. was dirty and stinky, and his nails were excessively long when he arrived at
his foster home. Because of the extra care and the diligent efforts of the foster
parents, D.D.E. improved tremendously after being placed in that home.
The Department’s plans for D.D.E. were for his biological parents’ rights to
be terminated and for him to be adopted by his foster parents. The Department’s
conservatorship caseworker, along with the CASA volunteer that had been appointed
as the child’s guardian ad litem, believed that it would be in D.D.E.’s best interest
for Appellant’s parental rights to be terminated. Additionally, D.D.E.’s foster mother
testified that she did not believe that it would be in D.D.E.’s best interest to return
him to Appellant’s care. The foster mother explained that D.D.E. acts out and also
“wets himself” before and after visitation with Appellant. And, according to his
guardian ad litem, D.D.E. has expressed a desire to stay with his foster parents.
Appellant disagreed with the opinions of the caseworker, the guardian ad
litem, and the foster mother; Appellant believed that it would be in D.D.E.’s best
interest to return home with her. Appellant testified that she now understands
D.D.E.’s needs and realizes that those needs stem from her excessive drug use. She
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indicated that she is trying to make it right now. She testified that she loved her son
and wanted him back and that she had been sober for an extended period of time.
We note that the testimony of other witnesses contradicted Appellant’s testimony
regarding her sobriety date.
III. Analysis
A. Endangering Conduct
In her first and second issues, Appellant challenges the legal and factual
sufficiency of the evidence to prove grounds (D) and (E). We need only address her
challenge to the trial court’s finding under Section 161.001(b)(1)(E). See In re N.G.,
577 S.W.3d 230, 234–35 (Tex. 2019) (addressing due process and due course of law
with respect to appellate review of grounds (D) and (E) and holding that an appellate
court must provide a detailed analysis if affirming the termination on either of these
grounds).
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (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. In re D.T., 34 S.W.3d 625, 634 (Tex.
App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex.
App.—Eastland 1999, no pet.). The offending conduct need not be directed at the
child, nor does the child actually have to suffer an injury. In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009). Drug use may constitute evidence of endangerment. Id. As
such, a parent’s drug addiction and its effect on the parent’s life and ability to parent
a child may establish an endangering course of conduct. In re J.T.G., 121 S.W.3d
117, 125–26 (Tex. App.—Fort Worth 2003, no pet.) (citing Dupree v. Tex. Dep’t of
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Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no
writ)).
Here, based upon evidence of Appellant’s use of cocaine while she was
pregnant and thereafter while the child was in her care, the child having tested
positive for cocaine, and the lifelong detrimental effects that Appellant’s cocaine use
had on her child, the trial court could have reasonably found by clear and convincing
evidence that Appellant had engaged in a course of conduct that endangered her
child. Appellant’s recent strides toward overcoming her past conduct do not negate
her past conduct. See In re J.F.-G., 627 S.W.3d 304, 317 (Tex. 2021). Therefore,
we hold that the evidence is legally and factually sufficient to uphold the trial court’s
finding of termination as to Appellant under subsection (E). Accordingly, we
overrule Appellant’s second issue. Because only one statutory ground is necessary
to support termination and because we have upheld the trial court’s finding as to
subsection (E), we need not address Appellant’s first issue. See FAM.
§ 161.001(b)(1); N.G., 577 S.W.3d at 234–35; see also TEX. R. APP. P. 47.1.
B. Best Interest
In her third issue, Appellant challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination of her parental rights
would be in the best interest of D.D.E.
With respect to D.D.E.’s best interest, the evidence, as set forth above, shows
that Appellant used cocaine while pregnant and thereafter while D.D.E. was in her
care, that she failed to assure that D.D.E.’s needs were met when he was in her care
prior to removal, and that she continued to use cocaine after removal while this case
was pending. Additionally, D.D.E. has serious behavioral and cognitive issues
stemming from Appellant’s use of cocaine.
D.D.E. made great strides after being removed from Appellant’s care, and
D.D.E. wished to remain with his foster parents rather than being returned to
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Appellant. Further, the caseworker and the guardian ad litem both testified that it
would be in D.D.E.’s best interest to terminate Appellant’s parental rights.
In light of the evidence presented at trial and applying the Holley factors, we
hold that the trial court could reasonably have formed a firm belief or conviction that
termination of Appellant’s parental rights would be in D.D.E.’s best interest. See
Holley, 544 S.W.2d at 371–72. Upon considering the record as it relates to 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 those involved, the plans for the child by the Department,
Appellant’s long history of drug use, and the instability of Appellant’s situation, we
further hold that the evidence is legally and factually sufficient to support the trial
court’s finding that termination of Appellant’s parental rights is in the best interest
of D.D.E. See id. We defer to the trial court’s findings as to the child’s best interest,
see C.H., 89 S.W.3d at 27, and we cannot hold in this case that the trial court’s finding
as to best interest is not supported by clear and convincing evidence. Accordingly,
we overrule Appellant’s third issue.
IV. This Court’s Ruling
We affirm the order of the trial court.
W. STACY TROTTER
JUSTICE
October 7, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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