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

AFFIRM; and Opinion Filed August 30, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01255-CV
IN THE INTEREST OF N. G., A CHILD
On Appeal from the 469th Judicial District Court
Collin County, Texas
Trial Court Cause No. 469-54747-2012
MEMORANDUM OPINION ON REMAND
Before Justices Schenck, Partida-Kipness,1 and Carlyle2
Opinion by Justice Schenck
This appeal of a termination of parental rights is before us on remand from the Texas
Supreme Court. Both Mother and Father separately appealed the termination of their parental
rights to N.G. Mother challenged the sufficiency of the evidence to support the trial court’s
findings in support of termination of her rights to N.G. and the trial court’s decision to grant a
motion to quash a subpoena she issued to N.G.3 Father challenged the sufficiency of the evidence
to support the trial court’s findings in support of termination of his rights to N.G.4
1
The Honorable Justice Robbie Partida-Kipness succeeded the Honorable David Evans, a member of the original panel. Justice Partida-
Kipness has reviewed the briefs and the record before the Court.
2
The Honorable Justice Cory L. Carlyle succeeded the Honorable Douglas Lang, a member of the original panel. Justice Carlyle has reviewed
the briefs and the record before the Court.
3
In four issues, Mother challenged the sufficiency of the evidence to support the three findings under 161.001(b)(1)(D), (E), and (O) and the
finding that the termination was in the child’s best interest, and urged the trial court erred in granting CPS’s motion to quash her subpoena requiring
N.G. to testify.
4
In three issues, Father challenged the sufficiency of the evidence to support the three findings under 161.001(b)(1)(D), (E), and (O) and the
finding that the termination was in the child’s best interest.
On original submission, we determined the evidence was both legally and factually
sufficient to support the trial court’s findings that Mother and Father 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, N.G. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O); In re N.G.,
575 S.W.3d 370, 377, 380 (Tex. App.—Dallas 2018), rev’d, –- S.W.3d –-, 2019 WL 2147263
(Tex. May 17, 2019). In doing so, we declined to address Mother’s and Father’s issues challenging
the sufficiency of the evidence to support the trial court’s findings that they knowingly placed or
knowingly allowed N.G. to remain in conditions or surroundings that endanger the physical or
emotional well-being of N.G., or that they engaged in conduct or knowingly placed N.G. with
persons who engaged in conduct that endangers the physical or emotional well-being of N.G.,
because only one finding alleged under section 161.001(b)(1) of the family code is necessary to
support a judgment terminating parental rights. See FAM. § 161.001(b)(l)(D), (E); In re N.G., 575
S.W.3d at 377, 380. In addition, we determined the evidence was legally and factually sufficient
to support the trial court’s findings termination of Mother’s and Father’s rights is in the best interest
of N.G. In re N.G., 575 S.W.3d at 378, 381. As to Mother’s complaint concerning the quashing
of the subpoena issued to N.G., we concluded Mother failed to preserve the issue for appeal, and
we discerned no bases for reversal on that account in any event.
Only Mother filed a petition for review of this Court’s decision with the Texas Supreme
Court. In her petition, Mother argued this Court failed to address whether the trial court’s orders
were specific enough to support termination under Section 161.001(b)(1)(O), and argued that
because this Court did not address the legal and factual sufficiency of the trial court’s findings
under subsections D and E of section 161.001(b)(1), concerning endangering the physical or
emotional well-being of N.G., Mother could face a future termination of her parental rights as to
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another child under Section 161.001(b)(1)(M) without a determination concerning the sufficiency
of the evidence on the predicate issue,5 an issue Mother did not raise in her briefing with this Court.
The supreme court reversed our judgment affirming the trial court’s termination of
Mother’s parental rights, concluding due process and due course of law requirements mandate that
an appellate court detail its analysis for an appeal of termination of parental rights under Section
161.001(b)(1)(D) or (E) of the family code and this Court failed to address the specificity of the
court order establishing the steps or actions necessary for the parent to obtain return of the child.
The supreme court remanded the case to us for further proceedings consistent with its opinion.6
We requested that Mother and the Dallas County Child Protective Services Unit of the
Texas Department of Family and Protective Services (“Department”) submit supplemental
briefing responsive to the supreme court’s opinion. Neither Mother nor the Department
supplemented their briefing.
BACKGROUND
Mother and Father met in 2008 and married before N.G. was born in 2011. Five months
after N.G. was born, Father went to prison for two years for a drug offense. He was released in
April 2014. In January 2015, Mother went to jail. She was released six months later. In September
2015, Father was arrested and jailed for a violation of probation he received in connection with a
robbery charge. He was released from that confinement on December 13, 2015.
On October 25, 2015, a referral was made to the Department as to Mother and N.G., who
was approximately four years old at that time. The report included allegations that Mother and
others living in the home they occupied were using drugs in front of, or around, the child and that
5
Section 161.001(b)(1)(M) provides a court may order termination of the parent–child relationship if the court finds by clear and convincing
evidence that the parent has had his or her parent–child relationship terminated with respect to another child based on a finding that the parent’s
conduct was in violation of Section 161.001(b)(1)(D) or (E). See FAM. § 161.001(b)(1)(M). Only one finding alleged under section 161.001(b)(1)
is necessary to judgment of termination. In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.).
6
Because the supreme court reversed our judgment as it relates to Mother only, on remand we limit our discussion here to Mother’s issues.
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there were signs of hoarding in the home. A Department investigator visited the home and,
although there was some clutter and mess, she saw nothing dangerous. Mother told the Department
investigator that she was employed; that the home she, N.G., and her adult son lived in was owned
and occupied by a woman named T.B.; and that she was not presently using drugs though she had
used methamphetamine and cocaine in the past. At that time, Mother refused to provide an oral
swab for a drug test. The Department investigator saw N.G. sleeping and he appeared to be
unharmed. After the visit, the Department investigator made several unsuccessful attempts to get
Mother to submit to a drug test.
Less than a month later, in November 2015, the Department investigator learned from
Mother’s probation officer that Mother had tested positive for illegal drug use. Mother admitted
to using methamphetamine once in October 2015, but stated N.G. was not around at the time. On
November 10, the Department investigator, Mother, and Mother’s adult daughter met to determine
where N.G. would be placed while Mother was in jail for failing her drug test while on probation.
At that meeting, Mother agreed to submit to a drug test, and it was determined that N.G. would
stay with his maternal grandmother (“Grandmother”) who would supervise any visits with Mother.
Mother also consented to having N.G. tested for drugs. His test returned positive for illegal drugs.
Despite her agreement to be tested, Mother did not submit to testing.
On November 17, 2015, the Department filed its original petition for protection of the child
and for temporary managing conservatorship. The Department sought removal of N.G. because
Mother had tested positive for methamphetamine, Father was currently incarcerated, Mother failed
to take a drug test after numerous requests from the Department, and there was a long history of
Department referrals. N.G. was removed from Grandmother’s home in February 2016 after the
Department discovered N.G. was not with Grandmother and could not be located for several days
and because Grandmother was uncooperative and refused to allow N.G. to participate in therapy
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or be evaluated. N.G. was then placed with a paternal uncle until May. That placement ended
because the paternal uncle no longer wished to care for N.G. N.G. was then placed in foster care
and has remained with the same foster family since, although he was placed in respite for thirty-
five days due to an injury N.G. sustained while roughhousing with another child.
On May 12, 2016, the Department amended its petition to request the termination of
Mother’s and Father’s parental rights to N.G. Although Mother and Father were married at the
time the Department filed its original petition, the two divorced, and Father remarried before the
case proceeded to trial. During the course of litigation, the trial court ordered both Mother and
Father to participate in several education programs, drug and alcohol treatment, and counseling
services.7
The case proceeded to trial, which took place over several days during the summer of
2017.8 At the close of Department’s case, Mother requested directed verdicts on six of the grounds
for termination set forth in the Department’s first amended petition. In response, the Department
abandoned those challenged grounds.9 Father requested directed verdicts on several of the grounds
asserted against him, and the trial court granted a directed verdict as to some of the grounds. At
the end of trial, the trial court terminated Mother’s and Father’s parental rights and later signed an
7
On May 10, 2016, Mother was ordered to participate and successfully complete or provide: parenting education; psychological evaluation;
a list of all prescription medications; bonding assessment of Mother and N.G.; counseling; drug/alcohol assessment and follow all recommendations;
inpatient drug/alcohol treatment program approved by CPS and follow all after-care recommendations; random drug and alcohol urinalysis/hair
strand tests and oral swabs; maintain stable, suitable housing; and maintain suitable, stable, legal employment.
The same day, Father was ordered to participate and successfully complete or provide: parenting education; psychological evaluation; a list
of all prescription medications; bonding assessment of Father and N.G.; counseling; drug/alcohol assessment and follow all recommendations;
inpatient drug treatment program approved by CPS and follow all after-care recommendations; random drug and alcohol urinalysis/hair strand tests
and oral swabs; anger management or adult aggression management class approved by CPS; New Day Fatherhood Program or Father FOCUS
program; maintain stable, suitable housing; and maintain suitable, stable, legal employment.
8
The trial court’s final order states the trial court heard proceedings on May 16, June 1, June 15, June 16, June 20, July 5, and August 25, but
the reporter’s record reflects the following dates: May 16, June 1, June 15, June 16, June 20, June 22, June 26, and August 25. We note that the
June 22 date is when the trial court conferenced with N.G. in chambers. The other date discrepancy between June 26 and July 5 is not material to
our determination of the issues presented.
9
Mother did not move for directed verdict on the statutory grounds set forth in subsections D, E, and O of section 161.001(B)(1). Among
the statutory grounds the Department abandoned was subsection P concerning used of a controlled substance in a manner that endangered the health
or safety of the child and failure to complete a court-ordered substance abuse treatment program. FAM. § 161.001(b)(1)(P)(i).
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order terminating the parental rights of both based on findings under subsections D, E, and O of
section 161.001(b)(1) of the family code. See FAM. § 161.001 (b)(1)(D), (E), and (O). The order
also appointed the Department as the permanent managing conservator of N.G.
DISCUSSION
A court may terminate a parental relationship if it finds by clear and convincing evidence
(1) one or more statutory grounds for termination and (2) that termination is in the child’s best
interest. FAM. § 161.001(b)(1)–(2). Clear and convincing evidence is proof that 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. Id. § 101.007. Here, the trial court found the Department had proven by clear and
convincing evidence that Mother had:
knowingly placed or knowingly allowed the child [N.G.] to remain in conditions or
surroundings that endanger the physical or emotional wellbeing of the child; [TEX.
FAM. CODE § 161.001(b)(l)(D)]
engaged in conduct or knowingly placed the child [N.G.] with persons who engaged
in conduct that endangers the physical or emotional well-being of the child; [TEX.
FAM. CODE § 161.001(b)(l)(E)]
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 [N.G.] 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; [TEX. FAM. CODE § 161.001(b)(l)(O)]
The trial court also found that the termination of Mother’s parental rights was in the best
interest of N.G. Id. § 161.001(b)(2).
Mother raised legal and factual sufficiency issues challenging these statutory grounds for
termination and the trial court’s best interest finding and the supreme court remanded the case to
us to address subsections D and E, and, if necessary, to address the specificity of the order that is
the subject of subsection O. Mother did not challenge this Court’s conclusion regarding the best
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interest finding in her petition to the supreme court. Consequently, the supreme court did not
address that finding and we will not further discuss it here.
In reviewing the legal sufficiency of the evidence supporting an order terminating parental
rights, we 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.F.C., 96 S.W.3d 256, 266 (Tex. 2002). “To give appropriate deference to the
factfinder’s conclusions 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.” Id. In other words, we will disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. Id.
In a factual sufficiency review, we consider whether the disputed evidence is such that a
reasonable factfinder could not have resolved the disputed evidence in favor of its finding. Id. “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.” Id.
Under section 161.001(b)(1)(D), parental rights may be terminated if clear and convincing
evidence supports a finding that 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.” FAM. § 161.001(b)(1)(D). Section 161.001(b)(1)(E) allows for termination of parental
rights if clear and convincing evidence supports a finding that 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.” Id. § 161.001(b)(1)(E). Both grounds require proof of
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endangerment. In re N.E., No. 05-15-00361-CV, 2015 WL 5244334, at *11 (Tex. App.—Dallas
Sept. 8, 2015, pet. denied) (mem. op.).
Endanger means more than a threat of metaphysical injury or the possible ill effects of a
less-than-ideal family environment, but it is not necessary that the conduct be directed at the child
or that the child actually suffers injury. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987). Instead, it means to expose to loss or injury; to jeopardize. Id. A parent engaging in
conduct that leads to the parent’s imprisonment is evidence of endangerment. Id. Similarly,
evidence of a parent’s drug usage, or evidence that another parent allowed a child to be around a
parent or other persons using drugs, is evidence of endangerment. Dupree v. Texas Dep’t of Prot.
& Reg. Servs., 907 S.W.2d 81, 84–86 (Tex. App.—Dallas 1995, no writ).
The focus of an allegation under (D) is the suitability of the children’s living conditions.
In re M.C., 352 S.W.3d 563, 566 (Tex. App.—Dallas 2011, no pet.). To prove endangerment
under (D), the Department had to prove that Mother knowingly placed or knowingly allowed N.G.
to remain in conditions or surroundings that endangered N.G.’s physical or emotional well-being.
See id. Although the focus under (D) is N.G.’s environment, Mother’s conduct is nevertheless
relevant because a parent’s conduct can create an environment that endangers the physical and
emotional well-being of a child. In re J.D.B., 435 S.W.3d 452, 463–64 (Tex. App.—Dallas 2014,
no pet.).
The focus of an allegation under (E) is the parent’s conduct, either by act or omission. Id.
An allegation under (E) must be supported by evidence of a voluntary, deliberate, and conscious
course of conduct by the parent and not an isolated act or omission. Id. “Endangering conduct
may include the parent’s actions before the child’s birth, while the parent had custody of older
children, including evidence of [illegal] drug usage.” Boyd, 727 S.W.2d at 533. If the evidence
shows a course of conduct which has the effect of endangering the physical or emotional well-
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being of the child, a finding under (E) is supportable.” Id. 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. at n.4.
The following evidence establishes that Mother knowingly allowed N.G. to be in
conditions or surroundings that endangered his physical or emotional well-being and that she
knowingly placed N.G. with persons who engaged in conduct that endangered his physical or
emotional well-being.
I. Evidence of Illegal Drug Use
The Department investigator testified they removed N.G. from the custody of Mother
because remaining in her care presented a danger to N.G. The child’s positive drug test indicated
there was an immediate danger to his physical health and safety and Mother refused to take drug
tests.
In addition, the evidence established N.G. was removed from Mother’s custody following
Mother’s positive drug test while on probation. At that time, Mother and N.G. were living in
T.B.’s home. Father testified that he, Mother, T.B., and other individuals who came and went
from the home smoked methamphetamine. In addition, the evidence established N.G. tested
positive for illegal drugs. Consequently, Mother allowed N.G. to remain in conditions or
surroundings, and with persons who engaged in conduct, that endangered the physical well-being
of N.G.
Mother claimed to have only used drugs recreationally, “maybe once or twice a year,” until
around 2008. However, Mother had been charged with possession of illegal substances and placed
on probation for four years. Mother also admitted she relapsed in October 2015 when she was on
probation. She claimed that when she relapsed she used drugs in a hotel room and that N.G. was
not present. She claimed to have been clean since that time. Contrary to Mother’s claim, she
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tested positive for methamphetamines in August 2016. In addition, Father testified he had seen
Mother use drugs at least once since her professed relapse and that she was still actively using
drugs at the time of trial.
The Department caseworker assigned to the case testified that Mother was non-compliant
with the Department’s requests for drug testing. The caseworker further testified that when Mother
tested positive for methamphetamines in August 2016, she admitted “that she had been using
methamphetamines around the child . . .”
The psychologist who performed a psychological evaluation of Mother testified Mother
told her she started doing drugs in her early thirties. She was introduced to methamphetamine by
her first husband. She stated she had been arrested for theft, deception of a document, and
possession of drugs. Mother indicated to the psychologist that CPS became involved because she
did not have N.G. in the right place at the right time, as she was using drugs. The psychologist’s
diagnosis of Mother was “methamphetamine abuse, neglect of a child and then legal
circumstances.” The psychologist further testified that Mother did not take ownership for her
choices, and was inclined to blame others for her circumstances. She also testified that when
parents are using drugs, they are not emotionally present for their children, may physically be
absent, leaving the children to fend for themselves. Such physical or emotional remoteness is very
difficult for a child of N.G.’s age. In addition to evaluating Mother, the psychologist evaluated
N.G. She diagnosed him with unspecified anxiety disorder, “neglect of a child,” and a provisional
diagnosis of borderline intellectual functioning.
II. Evidence Concerning Living Environment
Father testified that when they lived in T.B.’s home there were seven or eight people living
there who would “just come and go.” Father described the home as “dirty” and “dangerous.”
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When asked to expand on what he meant by “dangerous,” Father said the house was “not a good
environment,” [j]ust a dirty house.” Mother agreed that the house was not suitable for a child.
At trial, the caseworker testified Mother’s housing situation is not stable because she
frequently changes homes. She indicated Mother has not demonstrated basic parenting skills in
regards to providing a safe and stable physical home environment. The caseworker further testified
that, based on the testimony of both parents, it is apparent that N.G. has never really lived with
them. He had been continuously passed off to whichever relative or friend was willing to have
him. Mother often left N.G. with his half-sister, who was twenty-four years old at the time N.G.
was removed. N.G.’s half-sister was engaged to a man who had an extensive criminal history,
some Child Protective Service (“CPS”) history, as well as a felony drug conviction. Mother also
left N.G. with Grandmother. When the Department conducted a home study at Grandmother’s
home to determine whether N.G. could be placed with her when he was removed, the study was
denied because of concerns related to extensive CPS history and extensive drug history.
A clinical psychologist who examined N.G. in June 2016 testified that the results of her
testing of N.G.’s intellect were consistent with a child who has been neglected.
III. Evidence of Incarceration
Both Mother and Father were frequently incarcerated before N.G.’s removal. Five months
after N.G. was born, Father went to prison for two years for a drug offense until his release in April
2014. Mother then went to jail from February to June of 2015. In September 2015, Father was
arrested for a probation violation on an underlying robbery charge, and he was not released until
December 13, 2015. Father was arrested again in June 2016 and incarcerated until November
2016. During the pendency of this case, Mother was arrested six times and faced a child
endangerment charge related to N.G. Mother had an upcoming criminal trial in July and it was
uncertain whether she would be incarcerated.
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Both Mother and Father were doing drugs in the home with the owner, both had significant
confinement in jail, unstable living arrangements, and neither had a valid explanation for N.G.’s
positive drug test. In re J.T.G., 121 S.W.3d 117, 126–27 (Tex. App.—Fort Worth 2003, no pet.)
(evidence sufficient to support termination based on mother’s continuous drug use, suicide
attempt, and exposure of child to violence in the home); Dupree, 907 S.W.2d at 85 (evidence
sufficient to support termination where Dupree had prior criminal record for drug offenses, a
pending criminal charge, and knew of mother’s drug use around the child).
Based on the record, we conclude that a reasonable factfinder could have formed a firm
belief or conviction that Mother knowingly allowed N.G. (1) to remain in conditions or
surroundings, and (2) engaged in conduct or knowing placed N.G. with persons who engaged in
conduct, which endangered the physical and emotional well-being of N.G. See Dupree, 907
S.W.2d at 85–86. The evidence is therefore legally sufficient to support the trial court’s finding
under both subsections D and E.
Viewing all of the evidence before us, including the evidence contrary to the judgment,
and giving due consideration to evidence the factfinder could have reasonably found to be clear
and convincing, we conclude the factfinder could have reasonably formed a firm belief or
conviction that Mother knowingly allowed N.G. (1) to remain in conditions or surroundings, and
(2) engaged in conduct or knowing placed N.G. with persons who engaged in conduct, which
endangered the physical and emotional well-being of N.G. See id. at 86. The evidence is therefore
factually sufficient to support the trial court’s finding under both subsections D and E.
We need not address the specificity of the court order establishing the steps or actions
necessary for the parent to obtain return of the child, which is tied to termination under Section
161.001(b)(1)(O), because the evidence is sufficient to support termination of Mother’s paternal
rights under Sections 161.001(b)(1)(D) and (E). TEX. R. APP. P. 47.1. Only one finding alleged
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under section 161.001(b)(1) of the family code is necessary to support a judgment terminating
parental rights. In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.).
CONCLUSION
We affirm the trial court’s order terminating Mother’s parental right to N.G.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
171255F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF N. G., A CHILD On Appeal from the 469th Judicial District
Court, Collin County, Texas
No. 05-17-01255-CV Trial Court Cause No. 469-54747-2012.
Opinion delivered by Justice Schenck,
Justices Partida-Kipness and Carlyle
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court
terminating mother’s parental rights to N.G. is AFFIRMED.
It is ORDERED that appellee recover its costs of this appeal from appellant mother.
Judgment entered this 30th day of August, 2019.
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