in the Interest of E.A., D.R., Z.A., and A.R., Children ( 2021 )

Opinion filed November 24, 2021
In The
Eleventh Court of Appeals
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No. 11-21-00104-CV
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IN THE INTEREST OF E.A., D.R., Z.A., AND A.R., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 9831-CX
MEMORANDUM OPINION
This is an appeal from orders in which the trial court terminated the parental
rights of the mother as to E.A., D.R., and Z.A. and appointed the mother as a mere
possessory conservator of A.R. The mother filed this appeal. 1 On appeal, she
presents three issues in which she challenges the sufficiency of the evidence to
support the trial court’s findings with respect to the termination of her parental rights
as to E.A., D.R., and Z.A. We affirm the orders of the trial court.
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We note that the parental rights of the children’s various fathers were also affected by the trial
court’s orders. However, none of the fathers filed an appeal.
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. 2021). To terminate
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 that Appellant had knowingly placed or knowingly
allowed E.A., D.R., and Z.A. to remain in conditions or surroundings that
endangered their physical or emotional well-being and that Appellant had engaged
in conduct or knowingly placed E.A., D.R., and Z.A. with persons who engaged in
conduct that endangered their 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 E.A., D.R., and Z.A.
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)).
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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).
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.
Evidence Presented at Trial
As is often the case in a parental termination proceeding, the children were
removed from their parents because of the use of illegal drugs by at least one of the
parents. This case began due to an incident involving D.R. and Z.A., who were both
under the age of three at the time. A passerby found D.R. and Z.A. in the middle of
a busy street and called the police. The police responded and observed marihuana
paraphernalia in the home. An investigator for the Department of Family and
Protective Services contacted Appellant about the incident and about drug use in the
home.
Appellant denied any drug use. However, hair follicle testing conducted about
a month after the intake showed that Appellant tested positive for methamphetamine
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at a level of 43,446 pg/mg and also tested positive for amphetamine and marihuana.
Z.A., Appellant’s youngest child, tested positive for methamphetamine at a level of
8,003 pg/mg. D.R. tested positive for methamphetamine at a level of 3,512 pg/mg
and cocaine at a level of 2,470 pg/mg. After the Department received the results of
the drug tests, all of Appellant’s children were removed from her care.
Appellant participated in the preparation of a family service plan, which was
subsequently made an order of the trial court. Appellant complied with her family
service plan in all but one respect: the drug screens. The record shows that Appellant
attended an inpatient rehabilitation program and that her subsequent urine tests were
negative for drugs; however, the results of her hair follicle tests continued to be
positive for drugs.
Although Appellant was present at trial, she did not testify. The permanency
case manager testified that Appellant and her children had a great bond, that she
loved them, and that they loved her. The case manager further testified that “having
more visit times with them and possibly moving to unsupervised [visits] would be a
good positive.” The case manager initially indicated that Appellant had been able to
demonstrate long-term sobriety, but she subsequently acknowledged that the barrier
to Appellant’s reunification with the children was Appellant’s “unclean hair follicle.”
At the time of trial, A.R. was thirteen years old and had been placed with a
maternal aunt for one year. A.R. was happy in her aunt’s home and was doing well
there, but she nonetheless wished to be returned to Appellant. Because of A.R.’s age
and maturity and her desire to be returned to Appellant, the Department did not seek
to terminate Appellant’s parental rights with respect to A.R. Instead, the
Department’s goal for A.R. was for her maternal aunt to be her permanent managing
conservator, without terminating the rights of Appellant or A.R.’s father. The
maternal aunt agreed to be A.R.’s permanent managing conservator. The maternal
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aunt testified that she believed it would be in A.R.’s best interest to continue to live
in the maternal aunt’s home. The CASA volunteer also testified that it would be in
A.R.’s best interest to remain with her maternal aunt.
E.A. was eight years old at the time of trial. She had been placed with a
paternal aunt—the same aunt with whom E.A. had been placed each time the
children were removed from Appellant’s care in the past. As a result, E.A. had
practically been raised by her paternal aunt. E.A. was thriving in her aunt’s home
and was very happy there. The Department’s goal for E.A. was for her parents’
parental rights to be terminated and for her to be adopted by the paternal aunt with
whom she had been placed for much of her life. The paternal aunt and her husband
hope to adopt E.A. The case manager believed that termination of Appellant’s rights
would be in E.A.’s best interest. The CASA volunteer believed that adoption by the
paternal aunt would be in E.A.’s best interest.
D.R. was four years old at the time of trial. He was initially placed with A.R.
and Z.A. in their maternal aunt’s home. However, approximately two weeks prior
to trial, D.R. was moved to foster care because the maternal aunt informed the
Department that she could no longer care for the youngest two children: D.R. and
Z.A. The Department’s goal for D.R. was termination of both parents’ parental rights
and “unrelated adoption.” The case manager believed that termination of
Appellant’s rights would be in D.R.’s best interest. The CASA volunteer believed
that the Department’s goal for D.R. was in D.R.’s best interest.
Z.A. was three years old at the time of trial. Like D.R., Z.A. was initially
placed with his maternal aunt but was moved to foster care approximately two weeks
prior to trial. Z.A.’s father had only recently been identified and, thus, had not been
able to complete the services that would be required for reunification with Z.A. The
Department’s goal for Z.A. was termination of Appellant’s parental rights and—if
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the father successfully completes the services required by his family service plan—
reunification of Z.A. with his father. The case manager believed that termination of
Appellant’s rights would be in Z.A.’s best interest. The CASA volunteer believed
that the Department’s goal for Z.A. was in Z.A.’s best interest.
The CASA volunteer testified that Appellant had not been able to create a safe
and stable environment for her children and that she would be concerned if the
children were returned to Appellant. According to E.A.’s paternal aunt, Appellant
had not been able to provide stability for the children since E.A. was born. The case
manager testified that the Department had previously been involved with Appellant
and her children multiple times but that, each time, the children had ultimately been
returned to Appellant. The case manager further testified that, at this point, it would
be in the children’s best interest to have a stable environment. The Department
planned for the sibling visits to continue and for those visits to be monitored by the
Department even after the termination of Appellant’s parental rights.
Analysis
1. The evidence was sufficient to show that Appellant endangered her
children.
In her second and third issues, Appellant challenges the legal and factual
sufficiency of the evidence to prove grounds (D) and (E). We need only address the
third issue in this opinion—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); see also In re J.F.-
G., 627 S.W.3d 304, 312 (Tex. 2021) (acknowledging that one predicate finding—
coupled with a best-interest finding—is enough to uphold the judgment on review).
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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.Based upon evidence of Appellant’s use of methamphetamine, D.R. and Z.A.
being exposed to drugs such as methamphetamine and cocaine while in Appellant’s
care, and D.R. and Z.A. being found wandering in the middle of a busy street without
adult supervision, we conclude that the trial court could have found by clear and
convincing evidence that Appellant had engaged in conduct or knowingly placed her
children with persons who engaged in conduct that endangered the children’s
physical or emotional well-being. We hold that the evidence is legally and factually
sufficient to uphold the trial court’s finding as to Appellant under subsection (E).
Accordingly, we overrule Appellant’s third 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 reach Appellant’s second issue—her
challenge to the finding under subsection (D). See FAM. § 161.001(b)(1); N.G., 577
S.W.3d at 234–35; see also TEX. R. APP. P. 47.1.
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2. The evidence was sufficient to show that termination of Appellant’s
parental rights was in the best interest of E.A., D.R., and Z.A.
In her first 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 E.A., D.R., and Z.A. Appellant asserts that it was
not in the children’s best interest to separate them. She also asserts that the
uncertainty of D.R.’s and Z.A.’s situations weighed against termination. Under the
circumstances in this case, we cannot agree with Appellant’s contentions.
The trial court, as the trier of fact, is the sole judge of the witnesses’ credibility.
A.B., 437 S.W.3d at 503. Giving due deference to the trial court, we hold that, based
on the evidence presented at trial and the Holley factors, the trial court could
reasonably have formed a firm belief or conviction that termination of Appellant’s
parental rights would be in E.A.’s, D.R.’s, and Z.A.’s best interest. See Holley, 544
S.W.2d at 371–72. Upon considering the record as it relates to the desires of E.A.,
D.R., and Z.A.; the emotional and physical needs of these children now and in the
future; the emotional and physical danger to these children now and in the future;
the parental abilities of those involved; the plans for these children by the
Department; the acts previously committed by Appellant that endangered her
children; Appellant’s history with the Department; Appellant’s continued drug use;
and the instability of Appellant’s situation, we hold that the evidence is legally and
factually sufficient to support the finding that termination of Appellant’s parental
rights is in the best interest of E.A., D.R., and Z.A. See id. Based on Appellant’s
history with the Department and the testimony of the witnesses at trial, the trial court
could have found by clear and convincing evidence that Appellant was either unable
or unwilling to provide stability for her children. We defer to the trial court’s finding
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as to the children’s best interest, see C.H., 89 S.W.3d at 27, and we cannot hold in
this case that the finding as to best interest is not supported by clear and convincing
evidence. We overrule Appellant’s first issue.
This Court’s Ruling
We affirm the orders of the trial court.
W. BRUCE WILLIAMS
JUSTICE
November 24, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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