in the Interest of M.A.J.Jr., H.A.J., and B.D.J., Children v. Department of Family and Protective Services ( 2020 )

Opinion issued March 5, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00685-CV
———————————
IN THE INTEREST OF M.A.J. JR., H.A.J., AND B.D.J., CHILDREN
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2018-04197J
MEMORANDUM OPINION
In this accelerated appeal,1 appellant, mother, challenges the trial court’s
order, entered after a bench trial, terminating her parental rights to her minor
children, M.A.J. Jr. (“M.A.J.”), H.A.J., and B.D.J. (collectively, “the children”).2 In
1
See TEX. FAM. CODE ANN. § 263.405(a); TEX. R. APP. P. 28.4.
2
The trial court also terminated the parental rights of the children’s father. He is not
a party to this appeal.
four issues, mother contends that the evidence is legally and factually insufficient to
support the trial court’s findings that she engaged, or knowingly placed the children
with persons who engaged, in conduct that endangered their physical and emotional
well-being;3 she constructively abandoned the children, who had been placed in the
permanent or temporary management conservatorship of the Department of Family
and Protective Services (“DFPS”) for not less than six months;4 she failed to comply
with the provisions of a court order that specifically established the actions necessary
for her to obtain the return of the children;5 and termination of her parental rights
was in the best interest of the children.6
We affirm in part and reverse in part.
Background
On August 22, 2018, the DFPS filed a petition seeking termination of
mother’s parental rights to the children and managing conservatorship of the
children.
3
See TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
4
See id. § 161.001(b)(1)(N) (trial court may order termination of parental rights if it
finds by clear and convincing evidence that parent constructively abandoned child
who had been in permanent or temporary managing conservatorship of DFPS for
not less than six months and (i) DFPS had made reasonable efforts to return child to
parent; (ii) parent had not regularly visited or maintained significant contact with
child; and (iii) parent had demonstrated inability to provide child with safe
environment).
5
See id. § 161.001(b)(1)(O).
6
See id. § 161.001(b)(2).
2
DFPS Caseworker Cano
At trial, DFPS caseworker Gabriela Cano testified that M.A.J. was four years
old and both H.A.J. and B.D.J. were one year old. H.A.J. and B.D.J. are twins. Cano
stated that the children entered the care of DFPS based on an allegation of negligent
supervision occurring on June 24, 2018. DFPS’s records also indicated that there
was an incident involving injury to M.A.J. on July 23, 2018, but Cano did not know
anything about the incident. Cano did not ever see any injuries on M.A.J. and did
not see any photographs of injuries on M.A.J. When asked whether mother was “the
alleged perpetrator of the physical abuse against [M.A.J.],” Cano acknowledged that
she did not know. Instead, Cano stated that she “believe[d]” that it was “a failure to
protect on [mother’s] part.” When questioned regarding “the conditions of the
children . . . when they first came into [DFPS’s] care,” Cano admitted that the
children were “well.”
The children had been in their current placement, an “adoptive” home, for
three months. According to Cano, the home was stable. When asked whether “[t]he
current placement [was] doing well,” Cano responded, “[y]es.” Cano also stated that
the children’s needs were being met, including “[t]herapeutically.” The children did
not have any special needs, but H.A.J. and B.D.J. participated in occupational
therapy and speech therapy. M.A.J. participated in individual therapy at school.
DFPS’s goal for the children was an unrelated adoption. M.A.J. attended daycare.
3
In regard to mother, Cano explained that mother was given a Family Service
Plan (“FSP”) and Cano discussed the FSP with mother. Mother had completed some
of the requirements of her FSP, including completing her psychological evaluation
and her substance abuse assessment. Without any specificity, Cano stated that
mother had used narcotics in the past and continued to do so. Although mother had
been referred to outpatient treatment for her substance-abuse issues, mother had not
completed the treatment.7 According to Cano, mother had not regularly visited the
children during the pendency of the case, but this was because the trial court had
suspended her visits at the beginning of the case. Cano faulted mother for having
her visits with the children suspended. Cano noted that mother was not present at
trial.
Finally, Cano summarily testified that mother had engaged in a continuous
course of conduct that had endangered the physical and emotional well-being of the
children; the children’s “circumstances ha[d] substantially improved from the time
they came into care”; and it would be in the best interest for mother’s parental rights
to the children to be terminated.
Child Advocates Volunteer Clark
Child Advocates Inc. (“Child Advocates”) volunteer Kristy Clark testified
that the children were doing well in their current home and DFPS’s goal was to have
7
Cf. infra.
4
the children adopted. Clark opined that M.A.J. needed “a little bit more therapy”
and “had some trouble adjusting” to being in DFPS’s care. Clark also explained that
while the children were in DFPS’s care, they were neglected in a previous foster
home.
Mother’s FSP
The trial court admitted into evidence mother’s FSP, which stated that DFPS
received a referral for negligent supervision of M.A.J. on July 3, 2018. The referral
also alleged that mother had engaged in narcotics use. According to the FSP, on
July 24, 2018, mother tested positive for methamphetamine, amphetamine, and
marijuana use. The FSP noted that mother had the support of the family of the
children’s father, and DFPS’s permanency goal, when the FSP was issued, was
family reunification for the children and mother.
Narcotics-Testing Results
The trial court admitted into evidence the results from mother’s narcotics-use
testing before and during the pendency of this case. Mother tested negative for
narcotics use in April 2016 (hair follicle test), on November 8, 2018 (urinalysis), on
November 28, 2018 (urinalysis and hair follicle test), and on December 11, 2018
(urinalysis).8
8
Mother also tested negative for alcohol use on March 27, 2019 (urinalysis).
5
Mother tested positive for amphetamine, methamphetamine, and marijuana
use on July 24, 2018 (urinalysis); positive for marijuana use on September, 6 2018
(hair follicle test); positive for marijuana use on November 8, 2018 (hair follicle
test), positive for marijuana use on December 11, 2018 (hair follicle test), positive
for marijuana use on January 16, 2019 (urinalysis and hair follicle test), positive for
marijuana use on February 13, 2019 (urinalysis), positive for marijuana use on
March 14, 2019 (urinalysis), and positive for marijuana use on May 14, 2019 (hair
follicle test).
Mother did not submit to narcotics-use testing on October 15, 2018 or on
February 8, 2019.
Incident/Investigation Report
The trial court admitted into evidence a Harris County Sheriff’s Office
(“HCSO”) incident/investigation report dated July 23, 2018 related to an incident of
injury to a child. The report classifies mother as the “reportee” of the incident during
which MA.J. was injured. When a law enforcement officer arrived at mother’s
home, he saw M.A.J., who was three years old at the time, wearing a shirt, shorts,
and no shoes. M.A.J. had redness and swelling around both of his eyes, minor
scrapes on the right side of his chin and along his forehead, and swollen wrists.
Mother reported that M.A.J. had been playing with a neighbor, a five-year-old child,
D.G., in the yard when the two children began fist-fighting. D.G. hit M.A.J. and
6
M.A.J. fell to the ground. M.A.J. then got back up and the children continued
fighting. M.A.J. eventually knocked D.G. to the ground. D.G.’s mother then
approached the two children and struck M.A.J. with the back of her hand. This
caused M.A.J. to fall to the ground and “scream in pain.” Mother stated that she did
not intervene in the fight because D.G. had been the aggressor and he was “losing.”
The law enforcement officer noted that M.A.J.’s injuries were consistent with “being
in a fight with a larger child” and were not consistent with being struck by an adult.
In regard to mother’s home at the time, the law enforcement officer stated in
the report that the property “contained various scrap metal piles and junked
vehicles.” “Rusted scrap metal and broken glass were found on the ground
throughout the property,” and there were “numerous safety hazards.”
A follow-up supplemental report states that there was “no further
investigation [into the incident] by the Special Victims/Child Abuse Unit.” “The
allegations of injury to a child were due to[] 3 year old [M.A.J.] and 5 year old [D.G.]
engag[ing] in a physical altercation outside their residence.” Both parents were
present and observed the altercation. D.G.’s mother “broke up the fight,” but M.A.J.
was struck in his back with her hand. The law enforcement officer reviewing the
incident concluded that it involved a “mutual combat between 2 children.” And the
case was closed.
7
Mother
At the hearing on her motion for new trial,9 mother testified that she was not
present for trial because she did not receive notice of the trial date. Her attorney did
not contact her to notify her that trial was set for July 30, 2019. Mother had appeared
in court on other occasions during the pendency of the case, and if she had received
notice of the trial date, she would have been present.
Mother further testified that she knew that she had the FSP and that she was
supposed to complete the requirements listed in her FSP. Although she had not
completed all of the requirements, she had completed some of them. Mother
completed her parenting classes and her psychosocial assessment, and she had
participated in individual counseling. Mother was looking for employment at the
time of the new-trial hearing, but she noted that she had been employed during the
pendency of the case. Mother listed several businesses where she had applied for
employment. According to mother, in July 2019, she asked the trial court to allow
her more time to complete the requirements of her FSP.
Mother also testified that she participated in narcotics-use testing when she
“knew about it” and DFPS caseworker Cano told her that she had tested negative for
9
See In re J.B., 259 S.W.3d 383, 384–86 (Tex. App.—Beaumont 2008, no pet.)
(considering evidence from hearing on motion for new trial in concluding grounds
for termination had been met and termination of parental rights in best interest of
child).
8
narcotics use after March 2019. Mother believed, based on DFPS’s representations,
that she had not tested positive for narcotics use prior to trial.
Additionally, mother explained that she had moved out of the home where she
and the children had been living about two months after the children were removed
from her care. She now lived in a different home. Mother wanted to visit her
children during the pendency of the case, but the trial court did not allow her to do
so.
Permanency Hearing Record
At the hearing on mother’s motion for new trial, the trial court admitted into
evidence the reporter’s record from a permanency hearing on May 4, 2019. During
that hearing, DFPS caseworker Cano testified that the children were currently placed
in an adoptive home, where they had been for about two weeks. The “[c]urrent
placement [was] doing well” and the children did not have any special needs. They
were eating healthy. However, previously, the children were in a foster home where
the foster parents did not feed them correctly. The children were malnourished as a
result. The children had bruises and M.A.J.’s hair was falling out.
Additionally, Cano testified that mother had been given an FSP, and at the
time of the hearing, she was working on the requirements. Mother had completed
her psychosocial evaluation, substance abuse treatment, and some of her parenting
classes. Mother had not yet provided proof of housing or a stable income and had
9
not started individual therapy. Mother last tested positive for marijuana use in March
2019. Cano noted that mother wanted to complete the requirements of her FSP, and
mother planned to move to a new home “permanently.” Mother had provided Cano
with a family friend for possible placement of the children, but DFPS had not yet
completed a home study. DFPS was opposed to mother visiting the children due to
her positive narcotics-use testing results in the past.
Child Advocates volunteer Clark testified at the hearing that she had visited
the children once in their new placement, it was “absolutely wonderful” and
“appropriate.” Clark also summarily stated that mother’s parental rights to her
children should be terminated.
Clark additionally explained that she was concerned for the welfare of the
children in their previous foster home because M.A.J.’s hair was failing out and he
had “a huge bruise on his head” and B.D.J. had a bruise on her cheek. Clark took
the children to the hospital because of their condition, and at the hospital, it was
determined that the children were extremely malnourished, causing their ribs to be
exposed.
Standard of Review
A parent’s right to “the companionship, care, custody, and management” of
her children is a constitutional interest “far more precious than any property right.”
Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (internal quotations omitted). The
10
United States Supreme Court has emphasized that “the interest of [a] parent[] in the
care, custody, and control of [her] children . . . is perhaps the oldest of the
fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville, 530
U.S. 57, 65 (2000). Likewise, the Texas Supreme Court has concluded that “[t]his
natural parental right” is “essential,” “a basic civil right of man,” and “far more
precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)
(internal quotations omitted). Consequently, “[w]e strictly construe involuntary
termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802 (Tex.
2012).
Because termination of parental rights is “complete, final, irrevocable and
divests for all time that natural right . . . , the evidence in support of termination must
be clear and convincing before a court may involuntarily terminate a parent’s rights.”
Holick, 685 S.W.2d at 20. Clear and convincing evidence is “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; see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the
standard of proof is “clear and convincing evidence,” the Texas Supreme Court has
held that the traditional legal and factual standards of review are inadequate. In re
J.F.C., 96 S.W.3d at 264–68.
11
In conducting a legal-sufficiency review in a termination-of-parental-rights
case, we must determine whether the evidence, viewed in the light most favorable
to the finding, is such that the fact finder could reasonably have formed a firm belief
or conviction about the truth of the matter on which DFPS bore the burden of proof.
Id. at 266. In viewing the evidence in the light most favorable to the finding, we
“must assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so,” and we “should disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” In
re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). However,
this does not mean that we must disregard all evidence that does not support the
finding. In re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we
must also be mindful of any undisputed evidence contrary to the finding and consider
that evidence in our analysis. Id. If we determine that no reasonable trier of fact
could form a firm belief or conviction that the matter that must be proven is true, we
must hold the evidence to be legally insufficient and render judgment in favor of the
parent. Id.
In conducting a factual-sufficiency review in a termination-of-parental-rights
case, we must determine whether, considering the entire record, including evidence
both supporting and contradicting the finding, a fact finder reasonably could have
formed a firm conviction or belief about the truth of the matter on which DFPS bore
12
the burden of proof. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We should
consider whether the disputed evidence is such that a reasonable fact finder could
not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96
S.W.3d at 266–67. “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.” In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (internal quotations omitted).
Sufficiency of Evidence
In her fourth issue, mother argues that the trial court erred in terminating her
parental rights to the children because the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental rights
was in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001(b)(2).
In order to terminate the parent-child relationship, DFPS must establish, by
clear and convincing evidence, that termination of parental rights is in the best
interest of the children. See id. § 161.001(b). The best-interest analysis evaluates
the best interest of the children. See In re D.S., 333 S.W.3d 379, 384 (Tex. App.—
Amarillo 2011, no pet.). It is presumed that the prompt and permanent placement of
the children in a safe environment is in their best interest. See TEX. FAM. CODE ANN.
§ 263.307(a); In re D.S., 333 S.W.3d at 383.
13
There is also a strong presumption that the children’s best interest is served
by maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). Thus, we strictly scrutinize termination
proceedings in favor of the parent. In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—
Texarkana 2013, no pet.). And because of the strong presumption in favor of
maintaining the parent-child relationship and the due process implications of
terminating a parent’s rights to her minor children without clear and convincing
evidence, “the best interest standard does not permit termination merely
because . . . child[ren] might be better off living elsewhere.” In re J.G.S., 574
S.W.3d 101, 121–22 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (internal
quotations omitted); see also In re W.C., 98 S.W.3d 753, 758 (Tex. App.—Fort
Worth 2003, no pet.). Termination of parental rights should not be used as a
mechanism to merely reallocate children to better and more prosperous parents. In
re J.G.S., 574 S.W.3d at 121–22; In re W.C., 98 S.W.3d at 758; see also In re E.N.C.,
384 S.W.3d at 809; In re C.R., 263 S.W.3d 368, 375 (Tex. App.—Dallas 2008, no
pet.).
Moreover, termination is not warranted “without the most solid and
substantial reasons.” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976) (internal
quotations omitted); see also In re N.L.D., 412 S.W.3d at 822. And in
parental-termination proceedings, DFPS’s burden is not simply to prove that a parent
14
should not have custody of her children; DFPS must meet the heightened burden to
prove, by clear and convincing evidence, that the parent should no longer have any
relationship with her children whatsoever. See In re K.N.J., 583 S.W.3d 813, 827
(Tex. App.—San Antonio 2019, no pet.); see also In re J.A.J., 243 S.W.3d 611, 616–
17 (Tex. 2008) (distinguishing conservatorship from termination).
In determining whether the termination of mother’s parental rights is in the
best interest of the children, we may consider several factors, including: (1) the
children’s desires; (2) the current and future physical and emotional needs of the
children; (3) the current and future emotional and physical danger to the children;
(4) the parental abilities of the parties seeking custody; (5) whether programs are
available to assist those parties; (6) plans for the children by the parties seeking
custody; (7) the stability of the proposed placement; (8) the parent’s acts or
omissions that may indicate that the parent-child relationship is not proper; and
(9) any excuse for the parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976); In re L.M., 104 S.W.3d at 647. We may also consider the
statutory factors set forth in Texas Family Code section 263.307. See TEX. FAM.
CODE ANN. § 263.307; In re A.C., 560 S.W.3d 624, 631 n.29 (Tex. 2018); In re
C.A.G., No. 01-11-01094-CV, 2012 WL 2922544, at *6 & n.4 (Tex. App.—Houston
[1st Dist.] June 12, 2012, no pet.) (mem. op.).
15
These factors are not exhaustive, and there is no requirement that DFPS prove
all factors as a condition precedent to the termination of parental rights. See In re
C.H., 89 S.W.3d at 27; see also In re C.L.C., 119 S.W.3d 382, 399 (Tex. App.—
Tyler 2003, no pet.) (“[T]he best interest of the child does not require proof of any
unique set of factors nor limit proof to any specific factors.”). The absence of
evidence about some of the factors would not preclude a fact finder from reasonably
forming a strong conviction or belief that termination is in the children’s best
interest. In re C.H., 89 S.W.3d at 27; In re J.G.S., 574 S.W.3d at 122.
Likewise, a lack of evidence on one factor cannot be used as if it were clear
and convincing evidence supporting termination of parental rights. In re E.N.C., 384
S.W.3d at 808; In re J.G.S., 574 S.W.3d at 122. In some cases, undisputed evidence
of only one factor may be sufficient to support a finding that termination is in the
children’s best interest, while in other cases, there could be “more complex facts in
which paltry evidence relevant to each consideration mentioned in Holley would not
suffice” to support termination. In re C.H., 89 S.W.3d at 27; see also In re J.G.S.,
574 S.W.3d at 122. The presence of scant evidence relevant to each factor will
generally not support a finding that termination of parental rights is in the children’s
best interest. In re R.H., No. 02-19-00273-CV, 2019 WL 6767804, at *4 (Tex.
App.—Fort Worth Dec. 12, 2019, pet. denied) (mem. op.); In re A.W., 444 S.W.3d
690, 693 (Tex. App.—Dallas 2014, pet. denied).
16
1. Children’s Desires
At the time mother’s parental rights were terminated, M.A.J. was four years
old and both H.A.J., and B.D.J. were one year old. Generally, when children are too
young to express their desires, this factor is considered neutral. See In re A.C., 394
S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2012, no pet.). And here, there is
no evidence indicating that the children did not want to be returned to mother’s care.
See In re D.D.M., No. 01-18-01033-CV, 2019 WL 2939259, at *5 (Tex. App.—
Houston [1st Dist.] July 9, 2019, no pet.) (mem. op.) (factor weighed against
termination where no evidence indicating children did not want to be placed with
parent).
Further, Child Advocates volunteer Clark testified that M.A.J. has “had some
trouble adjusting” after being removed from mother’s care. And at the time of trial,
the children had only been in their current placement for a short period of time.
There is no evidence in the record that the children were bonded to their current
foster parents. Cf. In re L.W., No. 01-18-01025-CV, 2019 WL 1523124, at *17–18
(Tex. App.—Houston [1st Dist.] Apr. 9, 2019, pet. denied) (mem. op.) (factor
weighed in favor of termination where children, although young, were “very close”
to foster family and “bonded” and relied on foster parents for emotional support;
foster family was only family one child had ever known and he never left foster
parents’ side (internal quotations omitted)). Mother testified that she wanted to see
17
the children, but she was prevented from doing so by the trial court. See In re Z.B.,
No. 07-16-00026-CV, 2016 WL 3922936, at *7 (Tex. App.—Amarillo July 12,
2016, no pet.) (mem. op.). This factor does not weigh in favor of termination of
mother’s parental rights.
2. Current and Future Physical and Emotional Needs
Current and Future Physical and Emotional Danger
a. Condition of Home
The children need a safe and stable home. See TEX. FAM. CODE ANN.
§ 263.307(a) (prompt and permanent placement of child in safe environment
presumed to be in child’s best interest); In re G.M.G., 444 S.W.3d 46, 60 (Tex.
App.—Houston [14 Dist.] 2014, no pet.) (parent who lacks ability to provide child
with safe and stable home is unable to provide for child’s emotional and physical
needs). However, there is little evidence in the record regarding the condition of
mother’s home before the children were removed from her care. The only evidence
comes from the HCSO incident/investigation report dated July 23, 2018, which
states that the property where the children were living at the time “contained various
scrap metal piles and junked vehicles,” “[r]usted scrap metal and broken glass . . . on
the ground,” and “numerous safety hazards.” Despite this description, there is no
evidence in the record that the children were harmed by these conditions. Instead,
DFPS caseworker Cano testified that the children were “well” when they were
removed from mother’s care. See Ybarra v. Tex. Dep’t of Human Servs., 869 S.W.2d
18
574, 577–78 (Tex. App.—Corpus Christi–Edinburg 1993, no writ) (for conditions
to endanger well-being of children there must be connection between conditions and
resulting danger to children’s emotional or physical well-being).
The record also shows that mother moved away from the aforementioned
home within two months of the children being removed from her care. And at the
time of trial, she had a new residence, which DFPS caseworker Cano described as
“permanent[].” There is no evidence regarding the condition of mother’s new home,
and there is no evidence that the home is unsafe or unstable. See Ybarra, 869 S.W.2d
at 579; see also Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex. 1966); Toliver v.
Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 101 (Tex. App.—Houston
[1st Dist.] 2006, no pet.) (DFPS has burden to rebut presumption that best interest
of children is served by keeping custody with natural parent). A lack of evidence
does not constitute clear and convincing evidence. In re E.N.C., 384 S.W.3d at 808.
The record also does not contain evidence of the condition of the children’s
current placement.10 See In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio
Aug. 28, 2013, no pet.) (holding evidence insufficient to support best-interest finding
where no information about children’s current caregivers or nature of environment
10
The only evidence in the record concerned the children’s previous foster home,
where the children were not fed correctly, resulting in them becoming extremely
malnourished. The children sustained bruises while in that home, and M.A.J.’s hair
started falling out. Eventually, because of their condition, Child Advocates
volunteer Clark took the children to the hospital.
19
caregivers provided children); see also In re E.N.C., 384 S.W.3d at 808. DFPS
caseworker Cano opined that the children’s current foster home was stable, and
Child Advocates volunteer Clark stated that the children’s new placement was
“absolutely wonderful” and “appropriate.”11 See In re D.N., No. 12-13-00373-CV,
2014 WL 3538550, at *3–5 (Tex. App.—Tyler July 9, 2014, no pet.) (mem. op.)
(holding evidence insufficient to support termination of parental rights and noting
DFPS caseworker and children’s attorney ad litem did not provide any facts to form
basis of opinion). But, conclusory opinion testimony, even if uncontradicted, does
not amount to more than a scintilla of evidence; it is no evidence at all. See In re
A.H., 414 S.W.3d at 807; see also City of San Antonio v. Pollock, 284 S.W.3d 809,
818 (Tex. 2009) (opinion is conclusory “if no basis for the opinion is offered[] or the
basis offered provides no support”); Arkoma Basin Expl. Co. v. FMF Assocs. 1990–
A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008) (witness cannot “simply state a conclusion
without any explanation” or ask trier of fact to just “take [her] word for it” (internal
quotations omitted)); Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (witness
“must explain the basis of his statements to link his conclusions to the facts”). This
factor does not weigh in favor of termination of mother’s parental rights.
11
At the time Clark made these statements, she had seen the children in their current
placement one time.
20
b. Children’s Needs
DFPS caseworker Cano testified that the children do not have any special
needs. At the time of trial, H.A.J. and B.D.J. participated in occupational therapy
and speech therapy and M.A.J. participated in individual therapy at school. Child
Advocates volunteer Clark stated that M.A.J. needed “a little bit more therapy.”
There is nothing in the record to establish that the children’s physical and
emotional needs differ in any respect to that of other children their age or that their
needs would go unmet if they were returned to mother’s care. Likewise, the record
does not show that mother did not meet the children’s physical and emotional needs
while they were previously in her care, nor is there evidence that mother would not
be able to meet the children’s needs in the future. See In re E.N.C., 384 S.W.3d at
808 (no evidence indicating that children’s needs differ from other children or would
go unmet if children were returned to parent); In re D.D.M., 2019 WL 2939259, at
*6 (DFPS presented no evidence that parent could not meet children’s therapeutic
needs); In re E.W., 494 S.W.3d 287, 300–01 (Tex. App.—Texarkana 2015, no pet.).
In fact, DFPS caseworker Cano testified that when the children were removed from
mother’s care, they were “well.” See In re W.C., 98 S.W.3d at 758 (no evidence
parent failed to meet children’s needs in past).
And although Cano also testified that the children’s current placement was
meeting their needs, this is nothing more than a conclusory opinion. See In re A.H.,
21
414 S.W.3d at 807; see also Pollock, 284 S.W.3d at 818; Arkoma Basin, 249 S.W.3d
at 389; Earle, 998 S.W.2d at 890. All the record reveals about the children’s current
placement is that in May 2019, two months before trial, they were eating healthy.
This factor does not weigh in favor of termination of mother’s parental rights.
c. Danger to Children
DFPS caseworker Cano testified that the children entered the care of DFPS
based on an allegation of negligent supervision occurring on June 24, 2018, but Cano
knew nothing about the allegation and did not testify that it was mother who had
allegedly not supervised M.A.J. properly.12 Cano also knew nothing about an
incident involving injury to M.A.J. on July 23, 2018. Cano only speculated that it
was “a failure to protect on [mother’s] part” and offered conclusory testimony that
mother had engaged in a continuous course of conduct that had endangered the
physical and emotional well-being of the children. See Coastal Transport Co. v.
Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (“Opinion
testimony that is conclusory or speculative is not relevant evidence . . . .”); In re
D.N., 2014 WL 3538550, at *3–5 (holding evidence insufficient to support
termination of parental rights and noting DFPS caseworker and children’s attorney
ad litem did not provide any facts to form basis of opinion); In re A.H., 414 S.W.3d
12
Mother’s FSP notes that there was an allegation of negligent supervision of M.A.J.
on July 3, 2018, but it provides no details and does not allege that mother was
involved. See In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012).
22
at 807; see also Pollock, 284 S.W.3d at 818; Arkoma Basin, 249 S.W.3d at 389;
Earle, 998 S.W.2d at 890.
The HCSO incident/investigation report dated July 23, 2018 states that mother
reported an incident after M.A.J. was injured while fighting with another child. A
law enforcement officer who arrived at mother’s home examined M.A.J., who had
redness and swelling around both of his eyes, minor scrapes on the right side of his
chin and along his forehead, and swollen wrists. Mother told the officer that M.A.J.
was playing with a neighbor, a five-year-old child, D.G., in the yard when the two
children began fist-fighting. D.G. hit M.A.J. and M.A.J. fell to the ground. M.A.J.
then got back up and the children continued fighting. M.A.J. eventually knocked
D.G. to the ground. D.G.’s mother then approached the two children and struck
M.A.J. with the back of her hand. This caused M.A.J. to fall to the ground and
“scream in pain.” The law enforcement officer noted that M.A.J.’s injuries were
consistent with “being in a fight with a larger child” and were not consistent with
being struck by an adult.
A follow-up supplemental report states that there was “no further
investigation [into the incident] by the Special Victims/Child Abuse Unit.” “The
allegations of injury to a child were due to[] 3 year old [M.A.J.] and 5 year old [D.G.]
engag[ing] in a physical altercation outside their residence.” Both parents were
present and observed the altercation. D.G.’s mother “broke up the fight,” but M.A.J.
23
was struck in his back with her hand. The law enforcement officer reviewing the
incident concluded that it involved a “mutual combat between 2 children.” And the
case was closed.
The record does not contain evidence that mother acted aggressively or
violently toward the children while they were in her care. And there is no evidence
that mother negligently supervised the children and exposed them to danger. See In
re E.N.C., 384 S.W.3d at 808, 810 (“A lack of evidence does not constitute clear and
convincing evidence.”); In re J.C., No. 12-19-00102-CV, 2019 WL 3940803, at *4–
5 (Tex. App.—Tyler Aug. 21, 2019, no pet.) (mem. op.). In fact, DFPS’s initial
permanency goal was family reunification for the children and mother. And the
HCSO incident/investigation report indicates that mother reported the incident
during which M.A.J. was injured by another child.
Significantly, the record reveals that while the children have been in DFPS’s
care, they were placed in a foster home where they were not fed properly, and they
became extremely malnourished. Additionally, while in that placement, the children
suffered bruises, their ribs became exposed because of malnutrition, and M.A.J.’s
hair started falling out. Eventually, Child Advocates volunteer Clark took the
children to the hospital because of their condition. In re C.T.E., 95 S.W.3d 462, 468
(Tex. App.—Houston [1st Dist.] 2002, pet. denied) (considering emotional and
physical danger to children while in DFPS’s care). Clark testified that the children
24
were neglected in that foster home. This factor does not weigh in favor of
termination of mother’s parental rights.
d. Narcotics Use
Without providing details or specifics, DFPS caseworker Cano testified that
mother had used narcotics in the past and continued to do so. She also stated that
mother had not completed her outpatient treatment related to her substance-abuse
issues. However, Cano testified at the May 4, 2019 permanency hearing that mother
had completed her substance abuse treatment.
Mother’s FSP states that DFPS received a referral alleging that mother had
engaged in narcotics use. The FSP also notes that on July 24, 2018, mother tested
positive for methamphetamine, amphetamine, and marijuana use.
Mother’s narcotics-use testing results indicate that she tested positive for
amphetamine, methamphetamine, and marijuana use on July 24, 2018 (urinalysis).13
Thereafter, mother tested positive for marijuana use on September 6, 2018 (hair
follicle test), positive for marijuana use on November 8, 2018 (hair follicle test),
positive for marijuana use on December 11, 2018 (hair follicle test), positive for
marijuana use on January 16, 2019 (urinalysis and hair follicle test), positive for
marijuana use on February 13, 2019 (urinalysis), positive for marijuana use on
13
This appears to be the same testing result referenced in mother’s FSP.
25
March 14, 2019 (urinalysis), and positive for marijuana use on May 14, 2019 (hair
follicle test).14
However, mother also tested negative for narcotics use in April 2016 (hair
follicle test), on November 8, 2018 (urinalysis), on November 28, 2018 (urinalysis
and hair follicle test), and on December 11, 2018 (urinalysis). Mother testified that,
based on DFPS’s representations to her, she believed that she had not tested positive
for narcotics use before trial.
Narcotics use by a parent is certainly not desirable. See In re C.V.L., No.
05-19-00506-CV, --- S.W.3d ---, 2019 WL 6799750, at *13 (Tex. App.—Dallas
Dec. 13, 2019, pet. filed) (agreeing parent’s narcotics use constituted factor to be
considered in best-interest analysis); see also In re J.N., 301 S.W.3d 429, 434–35
(Tex. App.—Amarillo 2009, pet. denied) (although parent tested positive for
narcotics use, holding evidence factually insufficient to support trial court’s
determination termination of parental rights in best interest of child). However, there
is no evidence in the record that mother used narcotics in the presence of the children
or while she was caring for them. And there is no evidence that mother was impaired
while caring for the children. DFPS caseworker Cano’s testimony regarding
14
Mother did not submit to narcotics-use testing on October 15, 2018 or on February
8, 2019. Mother testified that she participated in narcotics-use testing when she
“knew about it.”
26
narcotics use by mother is speculative and conclusory at best, and it is unclear at
times during her testimony whether she is even referring to narcotics use by mother.
Notably, the results from mother’s April 2016 narcotics-use testing, while
M.A.J. was in her care, show that mother tested negative for narcotics use. Further,
the only time that mother tested positive for amphetamine or methamphetamine use
in this case was on July 24, 2018—a year before trial. And although mother tested
positive for marijuana use at times during the pendency of the case, on several
occasions mother tested negative or both positive and negative for marijuana use on
the same date.15 Finally, DFPS caseworker Cano stated that mother had completed
her substance abuse treatment. See In re C.V.L., 2019 WL 6799750, at *12–15
(refusing to hold, solely based on evidence of parent’s narcotics use, that evidence
was sufficient to support termination of parental rights); Turner v. Lutz, 685 S.W.2d
356, 360–61 (Tex. App.—Austin 1984, no writ) (evidence of parent’s “alcohol
problem” did not include any evidence showing emotional or physical danger to
children); cf. In re G.N., 510 S.W.3d 134, 135, 138–40 (Tex. App.—El Paso 2016,
no pet.) (parent had “history of substance abuse, including use of cocaine, marijuana,
and opiates” and “a substantial criminal history which include[d] . . . four cases
15
We note that courts’ consideration of parental marijuana use in
termination-of-parental-rights cases is evolving. See, e.g., In re N.J.H., 575 S.W.3d
822, 836–41 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (Brown, J.,
concurring).
27
involving possession of drugs”; parent did not address his “substance abuse issues”
and “refused to be tested for drugs after a pipe containing cocaine was found in his
vehicle”); In re A.C., 394 S.W.3d at 642 (“The mother admitted she had used drugs
during her pregnancy even though she knew it might harm the child. She tested
positive for drugs a month after the child was removed. And she used drugs even
though that violated the conditions of her probation, resulting in her going to jail,
away from the child.”). This factor only weighs slightly in favor of termination of
mother’s parental rights.
3. Parental Abilities, Plans for Children, Stability of Proposed
Placement, and Availability of Assistance
a. Mother
DFPS casework Cano testified that when the children were removed from
mother’s care, they were “well.” Cano also acknowledged that mother had
completed some of the requirements of her FSP, including her psychosocial
evaluation, substance abuse treatment, and some of her parenting classes. And Cano
noted that mother wanted to complete the requirements of her FSP. Although mother
had not visited the children during the pendency of the case, this was because the
trial court had suspended her visits at the beginning of the case, and DFPS opposed
mother visiting the children.
Mother testified that she had completed some of the requirements of her FSP,
including her psychosocial assessment, parenting classes, and she had participated
28
in individual counseling. Mother had worked during the pendency of the case and
she was actively looking for employment. Mother wanted to visit her children, but
the trial court did not allow her to do so. In July 2019, mother requested that the
trial court allow her more time to complete the requirements of her FSP.
As previously noted, there is little evidence in the record regarding the
condition of mother’s home before the children were removed from her care. The
only evidence comes from the HCSO incident/investigation report dated July 23,
2018, which states that the property where the children were living at the time
“contained various scrap metal piles and junked vehicles,” “[r]usted scrap metal and
broken glass . . . on the ground,” and “numerous safety hazards.” However, there is
no evidence in the record that the children were harmed by any of these conditions.
See Ybarra, 869 S.W.2d at 577–78 (for conditions to endanger well-being of
children there must be connection between conditions and resulting danger to
children’s emotional or physical well-being).
The record also shows that mother moved away from the aforementioned
home within two months of the children being removed from her care. And at the
time of trial, she had a new residence, which DFPS caseworker Cano described as
“permanent[].” There is no evidence regarding the condition of mother’s new home,
and there is no evidence that the home is unsafe or unstable. See Ybarra, 869 S.W.2d
at 579; see also In re E.N.C., 384 S.W.3d at 808; Herrera, 409 S.W.2d at 396;
29
Toliver, 217 S.W.3d at 101 (DFPS has burden to rebut presumption that best interest
of children is served by keeping custody with natural parent). This factor does not
weigh in favor of termination of mother’s parental rights.
b. Children’s Current Placement
As previously noted, the record contains no evidence of the condition of the
children’s current placement. There is also no evidence regarding the parental
abilities of the children’s current foster parents or the environment that they have
provided the children. See In re E.N.C., 384 S.W.3d at 808. At the time of trial, the
children had only been in their placement for a short period of time. And although
DFPS caseworker Cano testified that the children were residing in an “adoptive”
home, there is no evidence that the children’s current placement wants to adopt them
or wants the children to remain in the home. See Horvatich v. Tex. Dep’t of
Protective & Regulatory Servs., 78 S.W.3d 594, 601–04 (Tex. App.—Austin 2002,
no pet.) (holding evidence insufficient to support finding termination in best interest
of children where record not developed concerning current circumstances of
children); see also In re E.N.C., 384 S.W.3d at 808–09 (DFPS “presented no
evidence that another family wishe[d] to adopt the children, or that the children’s
foster parents c[ould] provide for them in a way [their parent could] []not.”). All the
record reveals about the children’s current placement is that in May 2019, two
months before trial, the children were eating healthy.
30
Additionally, the evidence in the record shows that while in DFPS’s care, the
children have been neglected and not provided with a safe and stable home. See In
re C.T.E., 95 S.W.3d at 468. This factor does not weigh in favor of termination of
mother’s parental rights.
DFPS must support its allegations against a parent, including its allegation
that termination of parental rights is in the best interest of the children, by clear and
convincing evidence; conjecture or a preponderance of evidence is not enough. See
In re E.N.C., 384 S.W.3d at 808–10; see also In re R.H., 2019 WL 6767804, at *4;
In re A.W., 444 S.W.3d at 693 (presence of scant evidence relevant to each factor
will generally not support finding that termination of parental rights is in children’s
best interest); Toliver, 217 S.W.3d at 101 (DFPS has burden to rebut presumption
that best interest of children is served by keeping custody with natural parent).
Viewing the evidence in a neutral light, we conclude that a reasonable fact
finder could not have formed a firm belief or conviction that termination of mother’s
parental rights was in the best interest of the children. Accordingly, we hold that the
evidence is factually insufficient to support the trial court’s finding that termination
of mother’s parental rights is in the best interest of the children.
We sustain mother’s fourth issue.16
16
Although we recognize the trial court and the parties in this proceeding had many
hearings before the date of trial, we emphasize that none of the previous hearings
constitute evidence that can support the trial court’s order terminating mother’s
31
Due to our disposition of mother’s fourth issue, we need not address the other
issues raised on appeal. See TEX. R. APP. P. 47.1.
Conclusion
We reverse the portion of the trial court’s order terminating mother’s parental
rights and remand the case to the trial court for a new trial. See TEX. R. APP. P.
28.4(c); In re J.O.A., 283 S.W.3d 336, 347 (Tex. 2009). Because mother did not
challenge the trial court’s appointment of DFPS as the children’s sole managing
conservator, we affirm that portion of the trial court’s order. See In re J.A.J., 243
S.W.3d at 612–13.
parental rights to her children. The only evidence that can support the trial court’s
order is that evidence admitted at trial. The reporter’s record from trial in this case
is thirty-two pages total, including the cover, list of appearances, table of contents,
and court reporter’s certificate. Although the trial court admitted twenty-five
exhibits into evidence at trial, the majority of them either do not relate to mother or
have no bearing on whether or not her parental rights should have been terminated.
The reporter’s records from the hearing on mother’s motion for new trial are also
lacking. Cf. In re E.F., 591 S.W.3d 138, 142 n.4 (Tex. App.—San Antonio 2019,
no pet.).
We are cognizant of the extraordinary burdens placed on all participants in
termination-of-parental-rights cases, but given the constitutional rights of the
parents involved in such proceedings, the interests of the children involved, and the
effect that placement of the children will have on numerous lives, it is imperative
that the parties completely develop the evidence at trial. See id. There is a reason
the law sets a high evidentiary bar for the termination of parental rights. See
Santosky v. Kramer, 455 U.S. 745, 753–54 (1982) (“The fundamental liberty
interest of natural parents in the care, custody, and management of their child does
not evaporate simply because they have not been model parents or have lost
temporary custody of their child to the State. . . . If anything, persons faced with
forced dissolution of their parental rights have a more critical need for procedural
protections . . . .”). To the extent that our dissenting colleague references matters
not admitted into evidence at trial, we take exception.
32
Julie Countiss
Justice
Panel consists of Justices Keyes, Goodman and Countiss.
Keyes, J., dissenting.
33