in the Interest of U.L., Jr., a Child ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00218-CV
___________________________
IN THE INTEREST OF U.L., A CHILD
On Appeal from the 360th District Court
Tarrant County, Texas
Trial Court No. 360-680224-20
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant U.L. (Father) appeals the trial court’s order terminating his parental
rights to his child U.L. (Uriah).1 In two issues, Father contends the evidence was
insufficient to support termination under Family Code Section 161.001(b)(1)(D) and
(E). Because we will hold that the evidence was legally and factually sufficient to
support the conduct grounds, we will affirm the trial court’s termination order.
II. BACKGROUND
M.W. (Mother) gave birth to Uriah in April 2020.2 Both Uriah and Mother
tested positive for cocaine at his birth, and later that month, the Department of
Family and Protective Services (the Department) sought and obtained an order
naming it as Uriah’s temporary sole managing conservator. Uriah was then placed
with a foster family.
Father was on notice in April 2020 that he might be Uriah’s father, and
paternity was confirmed by a DNA test in July 2020. Although the DNA test
confirmed his paternity, Father admitted to “having some mental health issues” at the
time and did not believe that Uriah was his child. According to Father, he
We use aliases to refer to the child and the parties. See Tex. Fam. Code Ann.
1
§ 109.002(d); Tex. R. App. P. 9.8(b)(2).
The trial court terminated Mother’s parental rights to Uriah in the same order
2
terminating Father’s parental rights. Mother does not appeal.
2
acknowledged paternity later in 2020 when he “stopped doing so many drugs and [his]
mind was coming back.”
Father has a history of mental-health problems. When he was thirteen or
fourteen, he was diagnosed with bipolar and schizoaffective disorder. Father testified
that he had been receiving mental health services “on and off” ever since. Father’s
mental-health problems continued after Uriah’s birth. Father testified that he had
received mental-health treatment at hospitals “quite a few times” since Uriah’s birth.
He stated that he had been placed in the hospitals because he “was thinking people
were trying to kill [him] and following [him], and [he would] leave the house
and . . . go and sleep on the trains and end up in the hospital.” Father also testified
that he had believed that “CPS” or “the cartel” was trying to kill him whenever he
“went to the CPS department.”3 Father stated that he was given prescriptions by the
hospitals for mental-health treatment but that he had stopped taking the prescribed
medications around the fall of 2020. When asked why he had stopped, Father stated,
“I was undergoing, like, you know, acute psychosis. I was in the grip of that and I
don’t know. I was on drugs at the time as well, so . . . .”
Father also has a history of illegal drug use that exacerbates his mental-health
problems. Father testified that he started using marijuana when he was eight or nine
3
Father testified that he began to be less paranoid about being killed by “CPS”
or “the cartel” when he “just didn’t care anymore.” He stated, “I was like whatever.
What’s going to happen, is going to happen.”
3
and that his usage was “[a]ll day, every day[,] [a]s much as [he] could consume.”4 He
said that he first experimented with cocaine in the 1980s but that he “stuck with it in
2006.” He described his cocaine usage as “$20 a night for years and years . . . but if
[he was] with a female that does a lot of drugs, [he would] end up doing a lot more.”
Father testified that he had started using methamphetamines when he was “in [his]
40’s.”5 He also stated that his longest stretch of sobriety was seven years. Father
testified that he experienced side effects from taking illegal drugs, including paranoia,
insomnia, and hallucinations.
Father’s illegal drug use continued after Uriah’s birth. Father testified that in
October 2020, he was taken to a hospital because “somebody gave [him] some K2
and [he] almost died . . . .”6 Father stated that he thought that someone was trying to
poison him and that this incident was “part of the plot” to kill him. Father also
testified that he had broken his ankle in July 2020, and he had obtained pain
4
Father was fifty-four years old when Uriah was born, and Father was fifty-six
years old at the time of trial.
5
As for his use of methamphetamines, Father’s testimony was unclear. He
testified that he had been using it “[n]ot long. Probably four or five months, six
months. I mean, if you put it all—I might’ve used it every day for years, but I’ve
never used a lot. I’ve always—I’ve never did a lot of drugs.”
6
K2 is a synthetic marijuana or a synthetic cannabinoid. See In re E.M.,
494 S.W.3d 209, 223 n.2 (Tex. App.—Waco 2015, pet. denied) (“K2 is a commonly
used name for synthetic marijuana, a controlled substance that is unlawful to
possess.”); In re Z.M., 456 S.W.3d 677, 682 n.4 (Tex. App.—Texarkana 2015, no pet.)
(“K2 is a synthetic cannabinoid drug that has a hallucinogenic effect when smoked.”).
4
medications “off the street” without a prescription. When asked what pain
medications he had obtained “off the street,” Father said, “[A]nything I could get,
really.” Father was later asked why he did not receive pain medications prescribed by
a physician, and Father explained that “at the time [he] was having psychological
problems, and [he] was thinking the doctors were trying to do something to [him].”
In November 2020, Leigh Ann Flores, a permanency specialist contracted by
the Department, spoke with Father about his drug use. Father admitted to Flores that
he had used cocaine that month and that when he used cocaine, “meth must be in the
cocaine.” During that conversation, Father also told Flores that he was using
marijuana but that he was trying to stop. At trial, Flores described a supervised visit
she had with Father and Uriah in November 2020, where Father was on the floor
with Uriah, and Father told her that he had forgotten that he had an OxyContin pill in
his pocket and that he was going to take it.7 Father told Flores that he did not have a
prescription for the pill but that he had “got if off the streets.”8 Flores also testified
that Father had tested positive for methamphetamines in October or November 2020.
She also testified that Father had tested positive for marijuana in December 2020.9
7
Flores requested that Father not take the pill, and Father complied.
8
During his testimony at trial, Father said that Flores’s testimony regarding the
pill was a “complete fabrication.”
During a visit with Flores in December 2020, Father told her that his
9
December 2020 drug test was negative, but Flores had to remind him that the test was
5
Father testified that he had stopped using marijuana, methamphetamines, and cocaine
sometime around the December 2020 test result.
One possible explanation for why Father was able to stop his use of illegal
drugs after the December 2020 test result was that he was arrested in January 2021
and spent the next six months incarcerated.10 Father is no stranger to the criminal
justice system. At trial, Father admitted that he had over ten convictions in California,
including a conviction for inflicting corporal injury on a spouse or cohabitant and two
convictions for willful cruelty to a child causing injury. Father explained at trial that
the conviction for inflicting corporal injury on a spouse or cohabitant and the
convictions for willful cruelty to a child causing injury stemmed from the same
incident. Father stated that during that incident, he got into an argument with the
mother of one of his children who had a child in her vehicle. Father testified that the
woman accused him of having sex with his sister and kicked him. He then “tried to
pull her out of the car” and “tr[ied] to tear her head off because she [had] kicked
[him].”11 Father explained that during the argument with the woman, he took the
positive for marijuana. Father then admitted to Flores that he was still using
marijuana.
10
The record reflects that Father was placed in a mental-health unit during at
least part of his incarceration. Father admitted at trial that he “was kind of off [his]
rockers” when he began his incarceration.
11
When Flores asked Father about this incident, Father told her that the woman
“kicked him so he pulled the car over and took the bitch out of the car and wanted to
kick her face in.”
6
child out of the vehicle and set the child down “15 feet” from the woman. Father
averred that “[t]here was no injury to the child.”12
Father’s criminal activities continued after Uriah’s birth, leading to his arrest
and incarceration in January 2021. In this regard, Father was convicted of the
following offenses that occurred after Uriah’s birth: (1) theft of less than $2,500 with
two or more previous theft offenses for stealing “clothing items, pens, a cable,
headphones, a stereo, and a drink” on July 13, 2020; (2) theft of less than $2,500 with
two or more previous theft offenses for stealing “a computer, clothing, and health and
beauty products” on July 23, 2020; and (3) theft of less than $2,500 with two or more
previous theft offenses for stealing “clothing, electronics, light bulbs[,] and infant
products” on September 24, 2020.
Flores testified that she set up a service plan for Father and gave it to him
around October 2020.13 Flores also testified that Father had not substantially
complied with his service plan. She testified that Father’s service plan required that he
receive drug treatment but that Father had told her during their most recent visit that
he was “not going to do any drug treatment” and that “he does not care what
anybody says, including the Court.” Father testified that he did not believe that he
12
Father testified that he was incarcerated for “almost three years” as a result of
this incident.
13
Father testified that he first saw the service plan in January 2021, when he was
incarcerated. Father also admitted that “[a] lot of times [he] would forget completely
about the services plan” because of his mental-health issues.
7
needed to follow “somebody’s system” regarding drug treatment but that he could
and had quit using illegal drugs by following his own “system.” Flores also testified
that Father was asked to participate in individual counseling and that while he had
started counseling, he did not complete it. Father testified that he did not need
counseling. Father explained that he did not require any assistance with coping skills
because he had been coping and that “[i]f you’re in the grips of psychosis, you hearing
voices and seeing things and believing things, the coping was just to deal with it and
go day by day without trying to hurt nobody and running up on people. So that’s the
coping right there.” At trial, Father testified that he had stopped using illegal drugs,
that he planned to stay on his current mental-health medications, and that he was not
experiencing any symptoms of his bipolar and schizoaffective disorder.
Following the July 2021 termination hearing—which took place one month
after Father’s incarceration ended—the trial court issued a ruling terminating Father’s
parental rights to Uriah under Subsections (D) and (E) of Family Code Section
161.001(b)(1) and finding that such termination was in Uriah’s best interest. Father
appeals from that termination order.
III. DISCUSSION
In two issues, Father argues that the evidence was insufficient to support
termination under Family Code Section 161.001(b)(1)(D) and (E).
8
A. Standard of Review
For a trial court to terminate a parent–child relationship, the party seeking
termination must prove two elements by clear and convincing evidence: (1) that the
parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1); and
(2) that termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b);
In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex.
2005). 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; E.N.C., 384 S.W.3d at 802.
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged
findings—here the endangerment findings under Family Code Section
161.001(b)(1)(D) and (E)—to determine whether a reasonable factfinder could form a
firm belief or conviction that the finding is true. In re J.P.B., 180 S.W.3d 570, 573
(Tex. 2005); see Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). We assume that the
factfinder settled any evidentiary conflicts in favor of its finding if a reasonable
factfinder could have done so. J.P.B., 180 S.W.3d at 573. We disregard all evidence
that a reasonable factfinder could have disbelieved, and we consider undisputed
evidence even if it is contrary to the finding. Id. That is, we consider evidence
favorable to the finding if a reasonable factfinder could, and we disregard contrary
9
evidence unless a reasonable factfinder could not. See id. The factfinder is the sole
judge of the witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346
(Tex. 2009).
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the factfinder’s findings and do not supplant them with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we review the whole record to
decide whether a factfinder could reasonably form a firm conviction or belief that the
Department proved the endangerment grounds. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder
reasonably could form such a firm conviction or belief, then the evidence is factually
sufficient. C.H., 89 S.W.3d at 18–19.
B. Law on Endangerment
Subsections (D) and (E) of Family Code Section 161.001(b)(1) provide that the
trial court may order the termination of a parent’s rights if it finds by clear and
convincing evidence that a parent has
(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; [or]
10
(E) 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(b)(1)(D), (E).
“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); In re J.T.G., 121 S.W.3d 117,
125 (Tex. App.—Fort Worth 2003, no pet.). Under Subsection 161.001(b)(1)(D), it is
necessary to examine the evidence related to the environment of the child to
determine if the environment was the source of the endangerment to the child’s
physical or emotional well-being. J.T.G., 121 S.W.3d at 125. Conduct of a parent in
the home can create an environment that endangers the physical and emotional well-
being of a child. Id. As an example, “abusive or violent conduct by a parent or other
resident of a child’s home may produce an environment that endangers the physical
or emotional well-being of a child.” Id. Illegal drug use by the parent and drug-
related criminal activity by the parent “likewise supports the conclusion that the
children’s surroundings endanger their physical or emotional well-being.” Id.Under Subsection 161.001(b)(1)(E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical well-being was the direct result of
the parent’s conduct, including acts, omissions, or failures to act. See id.; see also Tex.
Fam. Code Ann. § 161.001(b)(1)(E). 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. J.T.G., 121 S.W.3d at 125. It is not
11
necessary, however, that the parent’s conduct be directed at the child or that the child
actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific
danger to a child’s well-being may be inferred from parental misconduct standing
alone. In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).
“As a general rule, conduct that subjects a child to a life of uncertainty and instability
endangers the physical and emotional well-being of a child.” Id.Additionally, a parent’s mental state may be considered in determining whether
a child is endangered if that mental state allows the parent to engage in conduct
jeopardizing the child’s physical or emotional well-being. In re M.E.-M.N., 342 S.W.3d
254, 262 (Tex. App.—Fort Worth 2011, pet. denied); R.W., 129 S.W.3d at 739.
“Untreated mental illness can expose a child to endangerment . . . and is a factor the
court may consider” in its endangerment analysis. In re S.R., 452 S.W.3d 351, 363
(Tex. App.—Houston [14th Dist.] 2014, pet. denied). Indeed, “[m]ental health issues
that are frequently untreated, especially when combined with delusions, hallucinations,
a diagnosis of paranoid schizophrenia, and an unwillingness or inability to appreciate
the consequences of failing to treat those issues, can present a substantial risk to a
child’s safety.” In re L.M.F., No. 02-13-00459-CV, 2014 WL 2465137, at *14 (Tex.
App.—Fort Worth May 29, 2014, no pet.) (per curiam) (mem. op.).
Illegal drug use and its effect on a parent’s life and his ability to parent may
establish an endangering course of conduct. R.W., 129 S.W.3d at 739. Criminal
activity that exposes a parent to incarceration may also endanger a child. In re I.L.,
12
No. 02-18-00206-CV, 2018 WL 5668813, at *5 (Tex. App.—Fort Worth Nov. 1,
2018, no pet.) (mem. op.); In re A.N.D., No. 02-12-00394-CV, 2013 WL 362753, at *2
(Tex. App.—Fort Worth Jan. 31, 2013, no pet.) (mem. op.). “Domestic violence,
want of self[-]control, and propensity for violence may [also] 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.).
We may consider conduct that occurred outside the child’s presence in our
review. Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). We may also look at parental conduct
both before and after the child’s birth to determine whether termination is necessary.
R.W., 129 S.W.3d at 738; J.T.G., 121 S.W.3d at 125. Further, a father’s conduct
before paternity is established may be considered as evidence of an endangering
course of conduct. R.W., 129 S.W.3d at 738.
C. Endangerment Analysis
Because the evidence pertaining to Subsections (D) and (E) is interrelated, we
conduct a consolidated review. In re S.H., No. 02-17-00188-CV, 2017 WL 4542859, at
*10 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem. op.); In re T.N.S.,
230 S.W.3d 434, 439 (Tex. App.—San Antonio 2007, no pet.).
Here, the record reflects that Father’s mental-health issues, illegal drug use, and
criminal activity have been a persistent problem in his life and that these issues have
continued past Uriah’s birth. As to his mental-health issues, the record reflects that
13
Father was diagnosed with bipolar and schizoaffective disorder in his youth and that
he has been receiving mental health services “on and off” for over forty years. The
record further reflects that after Uriah’s birth, Father received mental-health treatment
“quite a few times” because he thought that people were trying to kill him. These
thoughts caused him to leave his home and to sleep on trains, eventually winding up
in the hospital. The record also reflects that for a period after Uriah’s birth, Father
stopped taking his prescribed mental-health medications. Finally, the record reflects
that Father’s mental-health issues are exacerbated by his illegal drug use.
As to his illegal drug use, the record reflects that Father has used marijuana
since he was eight or nine, and he described his usage as “[a]ll day, every day[,] [a]s
much as [he] could consume.” The record further reflects that Father has been a
long-time user of cocaine and that he also has a history of methamphetamine use.
Since Uriah’s birth, Father has tested positive for methamphetamines and marijuana,
and he has admitted to using cocaine, methamphetamines, and marijuana during that
time. Additionally, since Uriah’s birth, Father has been hospitalized due to his use of
K2, a synthetic marijuana, and he has taken pain medications that he obtained “off the
streets.” The record also reflects that during a supervised visit with Uriah, Father had
an unprescribed OxyContin pill in his pocket when he was playing on the floor with
Uriah. Finally, the record reflects that Father did not receive the required drug
treatment under his service plan and that he did not believe that he needed to follow
14
“somebody’s system” regarding drug treatment but that he could quit using illegal
drugs by following his own “system.”
As to his criminal activity, the record reflects that Father has over ten criminal
convictions in California, including a conviction for inflicting corporal injury on a
spouse or cohabitant and two convictions for willful cruelty to a child causing injury.
The record further reflects that Father has continued to engage in criminal activity
following Uriah’s birth. Apart from his use of illegal drugs following Uriah’s birth,
Father has also been convicted of three theft offenses during that time and was
incarcerated for six months due to those convictions.
In his brief, Father argues that the termination trial focused too much on his
past behavior and that the record reflects that he “took advantage of his second
chance while [Uriah] was in foster care.” We disagree. While the record does contain
much evidence of Father’s mental-health issues, illegal drug use, and criminal activities
before Uriah’s birth, as detailed above, the record further reflects Father’s mental-
health issues since Uriah’s birth, Father’s illegal drug use since Uriah’s birth, and
Father’s engaging in criminal activities since Uriah’s birth. Moreover, in our review,
we may consider parental conduct before a child’s birth. See R.W., 129 S.W.3d at 738;
J.T.G., 121 S.W.3d at 125.
Finally, Father seems to emphasize that many of his issues had subsided by the
time of the July 2021 trial and that he was working on his issues by following his
“system.” But Father fails to take into account—as the factfinder reasonably could
15
have—that Father had been incarcerated between January 2021 and June 2021 and
that the success of Father’s “system” could have been simply due to the fact that
Father was incarcerated during much of that time. Moreover, “even if a parent makes
dramatic improvements before trial, ‘evidence of improved conduct, especially of
short-duration, does not conclusively negate the probative value of a long history
of . . . irresponsible choices.’” In re A.J.M., 375 S.W.3d 599, 606 (Tex. App.—Fort
Worth 2012, pet. denied) (op. on reh’g) (quoting J.O.A., 283 S.W.3d at 346).
Viewing all the evidence in the light most favorable to the trial court’s
judgment and recognizing that the factfinder is the sole arbiter of the witnesses’
credibility and demeanor, we hold that there is some evidence of an endangering
environment on which a reasonable factfinder could have formed a firm belief or
conviction that Father had knowingly placed or had knowingly allowed Uriah to
remain in conditions or surroundings that had endangered Uriah’s emotional or
physical well-being and that there is some evidence of endangering conduct on which
a reasonable factfinder could have formed a firm belief or conviction that Father had
engaged in conduct that had endangered Uriah’s physical or emotional well-being. See
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).
Giving due deference to the factfinder’s endangering-environment and
endangering-conduct findings, without supplanting the factfinder’s judgment with our
own, and after reviewing the entire record, we hold that a factfinder could reasonably
form a firm conviction or belief that Father had knowingly placed or had knowingly
16
allowed Uriah to remain in conditions or surroundings that had endangered Uriah’s
emotional or physical well-being and that Father had engaged in conduct that had
endangered Uriah’s physical or emotional well-being. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E); In re M.A.P., No. 02-11-00484-CV, 2012 WL 2036457, at *8–
10 (Tex. App.—Fort Worth June 7, 2012, no pet.) (mem. op.) (finding evidence
sufficient to support endangerment when mother used marijuana during the pendency
of the Department’s case despite knowing that it exacerbated her schizophrenia, used
marijuana around infant, and failed to take her mental-health medications); J.I.T.P.,
99 S.W.3d at 845 (considering mother’s mental state, her history of noncompliance
with her medications, and domestic violence as factors endangering the child’s well-
being); In re C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort Worth 1984, no writ)
(finding evidence sufficient to support endangerment when mother was on
medication for paranoid schizophrenia at the time of trial, had been violent in the past
because of her mental-health issues, had been hospitalized over twenty times, and had
destroyed property and attempted to steal a helicopter).
We overrule Father’s two issues.
IV. CONCLUSION
Having overruled Father’s two issues, we affirm the trial court’s termination
order.
17
/s/ Dana Womack
Dana Womack
Justice
Delivered: November 10, 2021
18