in the Interest of D.K., a Child ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00027-CV
IN THE INTEREST OF D.K., A CHILD, Appellant
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 90324
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
On the petition of the Texas Department of Family and Protective Services, the trial court
terminated the parental rights of Mother to her child, D.K.,1 based on statutory grounds (C), (N),
(O), and (P) and its finding that termination was in the best interests of the child.2 See TEX. FAM.
CODE ANN. § 161.001(b)(1)(C), (N), (O), (P), (2). Mother appeals the termination of her parental
rights and asserts that the evidence was legally and factually insufficient to support the various
findings of the statutory grounds of termination. Because legally and factually sufficient
evidence supports termination of Mother’s parental rights under at least statutory ground (O), we
affirm the trial court’s judgment.
I. Standard of Review
“The natural right existing between parents and their children is of constitutional
dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to
make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel
v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates
fundamental interests, a higher standard of proof—clear and convincing evidence—is required at
trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). This Court is required to
“engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to
support the termination of parental rights.” Id. (quoting In re A.B., 437 S.W.3d at 500).
1
In order to protect the privacy of the child, we refer to him by his initials and refer to his biological parents as
Mother and Father. See TEX. R. APP. P. 9.8(b)(2).
2
Father’s parental rights to D.K. were also terminated, but he did not appeal.
2
“[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id. (quoting
In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick,
685 S.W.2d at 20)).
“In order to terminate parental rights, the trial court must find, by clear and convincing
evidence, that the parent has engaged in at least one statutory ground for termination and that
termination is in the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001; In re
E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that ‘degree of
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. (quoting TEX. FAM. CODE ANN. § 101.007) (citing
In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). “This standard of proof necessarily affects our
review of the evidence.” Id.“In our legal sufficiency review, we consider all the evidence in the light most favorable
to the findings to determine whether the fact-finder reasonably could have formed a firm belief
or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920
(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)
(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We
assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a
reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have
reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re
J.P.B., 180 S.W.3d at 573).
3
“In our review of factual sufficiency, we give due consideration to evidence the trial
court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder
reasonably could have found to be clear and convincing and determine ‘whether the evidence is
such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the
. . . allegations.’” Id. (quoting In re H.R.M., 209 S.W.3d at 108 (quoting In re C.H., 89 S.W.3d
17, 25 (Tex. 2002))); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002). “If, in light of the
entire record, the disputed evidence that a reasonable fact[-]finder could not have credited in
favor of the finding is so significant that a fact[-]finder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” Id. (quoting In re J.F.C., 96
S.W.3d at 266). In making this determination, we undertake “an exacting review of the entire
record with a healthy regard for the constitutional interests at stake.” Id. (quoting In re A.B., 437
S.W.3d 498, 503 (Tex. 2014) (quoting In re C.H., 89 S.W.3d at 26)). “We also recognize that
the trial court, as the fact-finder, is the sole arbiter of a witness’ demeanor and credibility, and it
may believe all, part, or none of a witness’ testimony.” In re A.M., No. 06-18-00012-CV, 2018
WL 3077784, at *3 (Tex. App.—Texarkana June 22, 2018, pet. denied) (mem. op.) (citing In re
H.R.M., 209 S.W.3d at 109).
II. Sufficient Evidence Supports the Finding that Ground (O) Supports Termination of
Mother’s Parental Rights
“Only one predicate finding under Section 161.001[(b)](1) is necessary to support a
judgment of termination when there is also a finding that termination is in the child’s best
4
interest.”3 In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting
In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)); In re K.W., 335 S.W.3d 767, 769 (Tex. App.—
Texarkana 2011, no pet.); see In re N.R., 101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003, no
pet.). “[W]hen the trial court finds more than one predicate ground for termination, we will
affirm if any one ground is supported by sufficient evidence.” In re J.R.H., No. 06-18-00052-
CV, 2018 WL 6625886, at *2 (Tex. App.—Texarkana Dec. 19, 2018, pet. denied) (mem. op.)
(citing In re K.W., 335 S.W.3d at 769).
In her third issue, Mother challenges the legal and factual sufficiency of the evidence
supporting the trial court’s finding that her parental rights should be terminated under statutory
ground (O). Under statutory ground (O), parental rights may be terminated if the parent has
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.
TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Mother only challenges the sufficiency of the
evidence that she failed to comply with the provisions of the trial court’s order and contends that
she complied with all the requirements of her family service plan.4,5 Mother testified at trial, and
contends on appeal, that she had completed all of her service plan, including parenting classes,
3
Mother does not challenge the trial court’s best-interest finding.
4
Compliance with the service plan had been made an order of the trial court.
5
Mother does not dispute that D.K. was removed under Chapter 262 for abuse or neglect or that he has been in the
permanent or temporary managing conservatorship of the Department for not less than nine months.
5
counseling, and drug treatment. It is undisputed that Mother completed her parenting classes and
that Mother participated in counseling and drug treatment.6
However, Brittany Allen, the Department’s caseworker assigned to the case, testified that
Mother’s service plan also included the requirement that Mother submit to drug testing. Allen
testified that Mother had been served in the case on July 16, 2021, and that she had only
submitted to four drug tests by the time of the final hearing, which took place on April 5, 2022.
The evidence, including Mother’s own testimony, showed Mother tested positive on two of those
tests—for fentanyl in December 2021 and for marihuana in January 2022. Allen testified that,
throughout the case, she had tried to send Mother for additional drug tests but that she did not go.
In addition, Allen testified that, on the morning of the final hearing, she ordered Mother to take a
drug test but that Mother had refused.7
The failure to submit to drug tests was significant in this case because the evidence
showed that, on December 16, 2021, Mother told West End Clinic in St. Louis that she was
addicted to painkillers, that she had used heroin and fentanyl twenty-two times, each, in the prior
thirty days, and that she had used marihuana four times during that time.8 The evidence also
showed that Mother told the clinic that she had used fentanyl and heroin for seven years and that
she had used marihuana for twenty-eight years. Mother, who was thirty-nine at the time of trial,
testified that she had been addicted to painkillers since she was eighteen years old.
6
It is unclear whether Mother’s counseling and drug treatment were completed at the time of the final hearing.
7
Mother testified that she had not refused to take the drug test but rather that she told Allen that she could not afford
to pay for the test since she only had $56.00 to get back to St. Louis, where she resides.
8
At trial, Mother testified that, although she used fentanyl and marihuana, she never used heroin, and she maintained
that she lied to the clinic in order to get into methadone treatment.
6
Mother’s testimony also showed that, when D.K. was born,9 he tested positive for
codeine and morphine. As a result, child protective services in Missouri opened a case while
D.K. was in the hospital, and Father was eventually awarded custody of D.K. Mother also
testified that, when another child protective services case involving D.K. was opened in
Oklahoma about one year later, she was offered services, but she refused because she was still
addicted to painkillers.
Because of Mother’s admittedly years-long addiction to painkillers, including while this
case was pending, it was significant that Mother failed on several occasions to submit to drug
testing. While Mother may have completed some of the requirements of her service plan,10
“partial compliance with a court-ordered service plan is insufficient under ground (O).” In re
J.R.H., 2018 WL 6625886, at *5 (citing In re J.F.C., 96 S.W.3d at 278). “Ground O does not
quantify any particular number of provisions of the family service plan that a parent must not
achieve in order for the parental rights to be terminated.” Id. (quoting In re B.H.R., 535 S.W.3d
114, 122 (Tex. App.—Texarkana 2017, no pet.)). Also, we defer to the fact-finder’s
determinations on issues of credibility and conflicts in the testimony when those determinations
are not unreasonable. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam).
After considering the entire record, we find that a reasonable fact-finder could have
formed a firm belief or conviction as to the truth of the finding that Mother failed to comply with
the provisions of the family service plan that was made a court order. See In re J.F.C., 96
9
At the time of the final hearing, D.K. was six years old.
10
Compliance with the service plan had been made an order of the trial court.
7
S.W.3d at 266. We also find that the disputed evidence that the trial court could not have
credited in favor of this finding is not so significant that it could not have reasonably formed a
firm belief or conviction as to the truth of its finding under statutory ground (O). See id. As a
result, we find the evidence legally and factually sufficient to support the trial court’s finding
under statutory ground (O). We, therefore, overrule this issue.11
III. Conclusion
For the reasons stated, we affirm the trial court’s judgment.
Scott E. Stevens
Justice
Date Submitted: July 7, 2022
Date Decided: July 8, 2022
11
Because only one predicate finding under Section 161.001(b)(1) is necessary to support a judgment of termination
when there is also a finding that termination is in the child’s best interest, we need not address Mother’s other issues.
8