in the Interest of X.L. ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-20-00195-CV
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IN THE INTEREST OF X.L.
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On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CV1813884
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MEMORANDUM OPINION
C.L. (“Father”) appeals the trial court’s order terminating his parental rights.
In his sole issue, Father challenges the legal and factual sufficiency of the evidence
supporting the best interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2). We
affirm the trial court’s judgment terminating Father’s parental rights.
BACKGROUND
In October 2018, the Department of Family and Protective Services (“the
Department”) filed a petition seeking the termination of Father’s parental rights to
his son, X.L. The trial court conducted a bench trial on the Department’s petition.
Chantelle Miller testified that she received X.L.’s case while working as an
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investigator with the Department, and the allegations included drug use by both
parents and concerns regarding the home environment. Miller explained that she
made initial contact with M.P., X.L.’s mother (hereafter referred to as “Mother”),
who would not allow her in the home. Although Mother reported that X.L. was
staying with Father in a hotel, Miller learned that Father was in jail due to a domestic
violence incident with Mother. Miller testified that when she visited Father at the
jail, he denied the allegations of domestic violence and drug use and also denied that
his home lacked working utilities, and Father reported that X.L. was staying with his
aunt. Miller testified that Father’s aunt denied having X.L., and Miller did not know
where X.L. was until she received a tip that X.L. was staying with a family friend.
According to Miller, when she first encountered X.L., he was dirty, unkempt,
and appeared to have not been bathed in a few days. After Miller discussed the
allegations with Mother, Mother denied drug use but admitted that she did not have
working utilities. According to Miller, Mother reported that she was pregnant, and
Mother refused a drug test and indicated that she would not cooperate with the
Department. Miller also explained that she had concerns about domestic violence
between Mother and Father, but she was unable to substantiate the allegations
concerning drug use or the condition of the home. Miller testified X.L. was removed
due to an unsafe and unstable environment and concerns about domestic violence,
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and because there were no placement possibilities when X.L. was removed, X.L.’s
case was transferred to a conservatorship.
Father testified that his first contact with the Department was when Miller
came to see him in jail, and at that time, he had been in jail for about two days.
According to Father, Miller informed him that the Department was removing X.L.
from Mother’s custody because there was no electricity at her home, and Father
testified that there was no power in the home. Father explained that he and Mother
have two other minor boys, Z.L., who is also in the Department’s care and X., a two-
month old who was in the hospital with a collapsed lung.
Father testified that he pays one hundred dollars a month in child support for
X.L. and provides clothes and milk. Father testified that he was currently employed
and that he had been staying at the Deluxe Inn for the past four months because it
was close to his workplace. Father explained that it had been three weeks since he
last saw X.L., who is placed with Father’s niece, L.L.
Concerning his family service plan, Father testified that he signed his service
plan in jail and was released seven or eight months later. Father stated that he was
unable to participate in any of the services during his incarceration. Father denied
taking drugs and admitted that he had not completed his services because of his work
schedule, and stated that he had completed half of the parenting classes and an
evaluation at the Department. Father also testified that he had two prior arrests for
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assaulting a family member and was convicted on one of the charges and served two
years in prison. Father explained that, although the domestic violence incident
involving Mother was an accident, he pleaded guilty and was currently on probation
for ten years.
According to Father, L.L. was taking good care of X.L., but he believed X.L.
should be with him and Mother. Father also testified that he had never seen Mother
harm or neglect X.L., and that even though he and Mother are not in a relationship,
he helps Mother because they have children together. Father asked that the court not
terminate his parental rights because he can take care of X.L. and wants to help raise
him.
Mother testified that X.L. was two years old at the time of trial and that when
X.L. was removed she was not living at the home about which the Department had
been concerned. Mother admitted that she was not cooperative with the Department
when X.L. was removed. Mother testified that she has four other children, including
X, a newborn who is living with a foster family. Concerning the domestic violence
incident with Father, Mother explained that it was an accident, and that she failed to
catch a can of beans that Father tossed to her. Mother testified that X.L. was there
when the incident occurred, and after Father called an ambulance for assistance, she
went to the hospital and received nine stitches on her head. Mother testified that she
believed that it was in the best interest of X.L. to remain in L.L.’s care, and Mother
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wanted to continue to have supervised visitation. Mother testified that Father takes
her to visit X.L. and that Father acts appropriately and is not a danger to her or X.L.
Sharonda Easley, a caseworker with the Department testified that Father was
incarcerated when X.L. was removed, and she did not know how involved Father
was prior to the removal. Regarding Father’s service plan, Easley testified that
Father completed a drug and alcohol assessment but failed to follow the
recommendations. Easley testified that Father also failed to complete parenting
classes and to comply with all drug tests. According to Easley, Father exhibited
anger during one of the visits with the children when he got into an altercation with
Mother. Easley testified that L.L. could provide a good permanent home.
Cindy Moffitt, X.L.’s CASA advocate, testified that X.L. is happy and doing
well in his current placement with L.L., and X.L. has a connection with his aunt and
cousins. Moffitt testified X.L. has been with L.L. for a year, and L.L. is employed
and can provide a home for X.L. According to Moffitt, it was in X.L.’s best interest
that Father’s parental rights be terminated, because X.L. deserves a permanent home,
and L.L. wants to adopt X.L. Moffitt explained that L.L. is also willing to be X.L.’s
permanent managing conservator and that L.L. would continue to allow X.L.’s
parents to visit if they are not under the influence of drugs. Karen Foyil, the CASA
advocate supervisor, testified that she spoke with Father about completing his
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services. Foyil explained that Father had not taken the needed steps to provide a safe
and stable home.
L.L. explained that she has known Father her entire life, and she wants X.L.
to have a connection with Father. L.L. testified that Father wanted X.L. to remain in
her home because it is a stable environment. L.L. testified that X.L.’s parents wanted
her to be X.L.’s permanent managing conservator, and L.L. indicated that she could
protect X.L. and continue to supervise the visits. L.L. testified that termination of
Father’s rights should be a last resort, but she knew that it was not in X.L.’s best
interest to be returned to his parents. According to L.L., it was in X.L.’s best interest
to remain with her, and she would allow X.L.’s parents to visit according to her terms
and work schedule. L.L. testified that she wants to adopt X.L. and to allow X.L.’s
parents to visit as long as they are safe and appropriate, and L.L. understood that
parental rights would have to be terminated for her to adopt.
L.L. expressed concern that X.L. acts out after he visits with his parents, and
it takes X.L. a day to calm down to his normal self. L.L. also explained that she did
not want X.L.’s parents using drugs around X.L. and that it was in X.L.’s best interest
that his parents be required to submit to drug testing. According to L.L., Father had
paid her two to three hundred dollars in child support for X.L. L.L. also testified
that X.L. has bonded with her mother and daughter, and she has plans for X.L. to
attend a pre-kindergarten program.
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The trial court found that clear and convincing evidence supported three
predicate statutory grounds for terminating Father’s parental rights and that
termination of Father’s parental rights was in X.L.’s best interest. See Tex. Fam.
Code Ann. §§ 161.001(b)(1)(D), (E), (O), (2). Father appealed.
ANALYSIS
In his sole issue, Father contends that the evidence is legally and factually
insufficient to demonstrate that termination of his parental rights is in X.L.’s best
interest. See Tex. Fam. Code Ann. § 161.001(b)(2). Under legal sufficiency review,
we review “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 the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We
assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could, and we disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible. Id. If no
reasonable factfinder could form a firm belief or conviction that the matter that must
be proven is true, the evidence is legally insufficient. Id.Under factual sufficiency review, we must determine whether the evidence is
such that a factfinder could reasonably form a firm belief or conviction about the
truth of the Department’s allegations. Id. We give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing. Id. We
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consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its ruling. 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, the evidence is factually insufficient. Id.The decision to terminate parental rights must be supported by clear and
convincing evidence, i.e., “the measure or 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.” Tex. Fam. Code Ann. § 101.007; In the Interest of J.L.,
163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the parent committed
one or more predicate acts or omissions and that termination is in the child’s best
interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); see also In the Interest of
J.L., 163 S.W.3d at 84. We will affirm a judgment if any one of the grounds is
supported by legally and factually sufficient evidence and the best interest finding is
also supported by legally and factually sufficient evidence. In the Interest of C.A.C.,
Jr., No. 09-10-00477-CV, 2011 WL 1744139, at *1 (Tex. App.—Beaumont May 5,
2011, no pet.) (mem. op.).
Regarding the best interest inquiry, we consider a non-exhaustive list of
factors: (1) the desires of the child; (2) emotional and physical needs of the child
now and in the future; (3) emotional and physical danger to the child now and in the
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future; (4) parental abilities of the individuals seeking custody; (5) programs
available to assist these individuals to promote the best interest of the child; (6) plans
for the child by these individuals or by the agency seeking custody; (7) stability of
the home or proposed placement; (8) acts or omissions of the parent which may
indicate that the existing parent-child relationship is not proper; and (9) any excuse
for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72
(Tex. 1976); see Tex. Fam. Code Ann. § 263.307(b). No particular Holley factor is
controlling, and evidence of one factor may be sufficient to support a finding that
termination is in a child’s best interest. In the Interest of A.P., 184 S.W.3d 410, 414
(Tex. App.—Dallas 2006, no pet.). The best interest determination may rely on
direct or circumstantial evidence, subjective facts, and the totality of the evidence.
In the Interest of N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.).
“A parent’s drug use, inability to provide a stable home, and failure to comply with
a family service plan support a finding that termination is in the best interest of the
child.” In the Interest of M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007,
no pet.). Evidence of a parent’s continued drug use supports a finding that he poses
a present and future risk of physical or emotional danger to the child and that
termination would be in the child’s best interest. See In the Interest of S.N., 272
S.W.3d 45, 53 (Tex. App.—Waco 2008, no pet.).
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With respect to the child’s best interest, the trial court heard evidence that (1)
Father had a history of committing family violence and had exhibited anger during
one of his visits with X.L., (2) Father failed to complete his service plan, (3) Father
failed to take the necessary steps to provide a safe and stable home, (4) Father failed
to comply with all drug tests, (5) X.L. is happy and has bonded with L.L. and her
family and is doing well in his current placement, (6) X.L.’s best interest would be
served by allowing him to remain with L.L., (7) L.L. wants to adopt X.L. and could
provide X.L. with a stable and drug-free home, (8) X.L. acts out after visiting with
Father and L.L. has concerns about Father’s continued drug use, (9) L.L. has plans
for X.L. to attend a pre-kindergarten program, and (10) termination of Father’s
parental rights is in the best interest of X.L. because X.L. deserves a permanent
home. The trial court also heard evidence that L.L. could provide a good permanent
home for X.L. and would continue to allow Father to be a part of X.L.’s life as long
as Father acted appropriately and remained drug-free. Prompt and permanent
placement of the child in a safe environment is presumed to be in the child’s best
interest. See Tex. Fam. Code Ann. § 263.307(a). As the sole judge of the credibility
of the witnesses and the weight to be given to their testimony, the trial court could
reasonably conclude that termination of Father’s parental rights was in X.L.’s best
interest. See id. § 161.001(b)(2), 263.307(a); see also In the Interest of J.F.C., 96
S.W.3d at 266; Holley, 544 S.W.2d at 371-72.; In the Interest of S.N., 272 S.W.3d
10at 53; In the Interest of M.R., 243 S.W.3d at 821. We conclude that the Department
established, by clear and convincing evidence, that termination of Father’s parental
rights is in the best interest of X.L. See Tex. Fam. Code Ann. § 161.001(b)(2); In the
Interest of C.A.C., Jr., 2011 WL 1744139, at *1. Accordingly, we overrule Father’s
sole issue and affirm the trial court’s judgment terminating Father’s parental rights.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on November 2, 2020
Opinion Delivered December 10, 2020
Before McKeithen, C.J., Kreger and Johnson, JJ.
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