W. C. and Z. B. v. Texas Department of Family and Protective Services ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00713-CV
W.C. and Z. B., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-18-003971, THE HONORABLE DARLENE BYRNE, JUDGE PRESIDING
MEMORANDUM OPINION
Z.B., the mother of R.Y. and A.C., and W.C., the father of A.C., appeal from the
trial court’s final decree terminating their parental rights to their children.1 See Tex. Fam. Code
§ 161.001. Following a bench trial, the trial court found by clear and convincing evidence that
statutory grounds for terminating their parental rights existed and that termination was in the
1 We refer to appellants and their children by their initials only. See Tex. Fam. Code
§ 109.002(d); Tex. R. App. P. 9.8. In this Court’s cause number 03-19-00792-CV, Z.B. appealed
from the termination of her parental rights to her child, R.H., and this Court affirmed the trial
court’s final decree. See Z.B. v. Texas Dep’t of Family & Protective Servs.,
No. 03-19-00792-CV, 2020 Tex. App. LEXIS 801, at *2 (Tex. App.—Austin Jan. 30, 2020, no
pet. h.) (mem. op.). The bench trial in this case also concerned Z.B.’s parental rights to R.H., but
the trial court severed the Department’s claims concerning R.H. into a different cause number
that is the subject of this Court’s cause number 03-19-00792-CV. See id. After the trial court
signed decrees terminating parental rights in both cause numbers, the trial court signed an order
consolidating the two cause numbers.
children’s best interest. See id. For the following reasons, we affirm the trial court’s final
decree.
Z.B.’s Appeal
The trial court found by clear and convincing evidence that Z.B. constructively
abandoned her children, that she failed to comply with the court-ordered services, and that
termination of her parental rights was in her children’s best interest. See id. § 161.001(b)(1)(N),
(O), (2).
On appeal, Z.B.’s court-appointed attorney has filed a brief concluding that her
appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967);
Taylor v. Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 646–47 (Tex. App.—
Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental
rights). The brief meets the requirements of Anders by presenting a professional evaluation of
the record demonstrating why there are no arguable grounds to be advanced on appeal. See
386 U.S. at 744; Taylor, 160 S.W.3d at 646–47. Z.B.’s counsel has certified to this Court that he
provided her with a copy of the Anders brief and informed her of her right to examine the
appellate record and to file a pro se brief. To date, she has not filed a pro se brief. The
Department of Family and Protective Services has filed a waiver of right to file a response to the
Anders briefs.
Upon receiving an Anders brief, we must conduct a full examination of the
proceedings to determine whether the appeal is wholly frivolous. Penson v. Ohio, 488 U.S. 75,
80 (1988). We have reviewed the entire record, including the Anders brief submitted on Z.B.’s
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behalf, and have found nothing that would arguably support her appeal. We agree that her
appeal is frivolous and without merit.
W.C.’s Appeal
Background
The Texas Department of Family and Protective Services filed its original petition
in suit affecting the parent child relationship in June 2018, a few days after Z.B. gave birth to
A.C. The Department’s stated concerns included Z.B.’s and W.C.’s drug usage, criminal history,
and incidents of domestic violence. The Department filed an affidavit by a Child Protective
Services investigator in support of its request for extraordinary relief. The investigator averred
that the Department had received a referral that Z.B. had tested positive for cocaine and
amphetamines in May 2018 during a pre-natal drug screen and for marijuana and
benzodiazepines in January 2018. Relevant to W.C.’s appeal, A.C., who was a few days old,
was removed and ultimately placed with a non-relative.
The Department initially was unable to locate W.C., but he was appointed counsel
and appeared for a status hearing in September 2018. The order from that hearing states that he
was present and reviewed and understood the Department’s service plan. In the order, the trial
court also included orders “to specifically establish the actions necessary for [W.C.] to obtain the
return of the child/ren.” W.C. was ordered to maintain monthly contact with the caseworker;
participate in supervised visits with his child at his request; submit to random drug testing; obtain
and maintain stable housing; and participate in services, including participating in and
completing a specified Nurturing Parenting Program, Resolution Counseling at Life Works, and
a drug and alcohol evaluation through OSAR. Specifics as to the required actions were included
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in the order such as contact information and locations. In October 2018, the trial court also
ordered genetic testing to determine the parentage of A.C. Based on the results from that testing,
the trial court signed an order on November 6, 2018, establishing that W.C. was the biological
father of A.C.
W.C. failed to comply with the court-ordered services and did not attend any
hearings after November 2018 until the bench trial. W.C. was incarcerated starting in November
or December 2018. Prior to being incarcerated, W.C. had two supervised visits with his child.
On March 20, 2019, W.C. was sentenced to three years in the Institutional Division of the Texas
Department of Criminal Justice after he pleaded true to the State’s motion to revoke his
community supervision. W.C. had been placed on community supervision in February 2017 for
the third-degree felony offense of accident involving serious bodily injury. See Tex. Transp.
Code § 550.021 (requiring operator of vehicle involved in accident generally to stop vehicle,
determine if person involved in accident requires aid, and remain at scene until operator has
complied with requirements and that failure to comply is third-degree felony if accident resulted
in serious bodily injury). The judgment reflects that W.C. violated the conditions of his
community supervision by submitting “positive urine specimens for THC on 3/23/18 and
benzodiazepines on 12/11/2018” and by failing to report to his supervision officer on multiple
occasions between May and December 2018.2
The trial court in this case granted an extension of the original dismissal date in
June 2019 until January 21, 2020, and the bench trial occurred over several days from August to
2 The State waived W.C.’s other alleged violations, including that W.C. had committed
the subsequent criminal offense of assault family violence in December 2018 “by striking [Z.B.]
in the face and pushing her to the ground.” W.C. testified that the judgment revoking
community supervision was the result of a plea deal.
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October 2019. The Department’s evidence from the first two days was directed to its request to
terminate the parents’ rights to their children, and the remaining days concerned conservatorship.
W.C. remained incarcerated, but he was present for the trial’s first two days by way of bench
warrant. Z.B. did not appear. On the trial’s first day, the Department’s witness was the
conservatorship caseworker who testified about her contact and communications with W.C.,
including the services that he was ordered to complete and did not. Prior to the trial’s second
day, which was a few weeks later, the caseworker, who was facing an investigation of
impropriety in another case for allegedly making misrepresentations to the court, resigned from
her position. On the trial’s second day, the Department’s witnesses were the CPS supervisor of
the caseworker and the CASA volunteer assigned to the children. The supervisor testified about
the circumstances surrounding the caseworker’s resignation, its impact on this case, and the
supervisor’s review of this case. The CASA volunteer testified about W.C.’s child’s best
interest, explaining why it was CASA’s belief that terminating W.C.’s parental rights was in his
child’s best interest.
W.C. testified on his own behalf. W.C. confirmed that he “took a plea deal” and
that he expected to be up for parole in January 2020. He also testified that he loved his child;
was learning from his mistakes, “trying to be a better person for [his child],” and “becoming
responsible”; and wanted to remain the child’s legal father. He further explained his reasons for
not following through with court-ordered services. He testified that he “reached out to [the
caseworker] as much as [he] could,” that he was postponed from his visits until he “was able to
prove that [he] was the biological father,” that he “really never had, like, the correct guidance on
the case,” and that the caseworker told him that he “[did not] need to work these types of
services.” Specifically, he testified that the caseworker told him that he did not have to take drug
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tests because the caseworker could go off his “probation record, of what [he] was doing on
probation.” He admitted, however, that he lost contact with the caseworker and did not complete
specified services.
After the first two days, the trial court signed an interlocutory decree of
termination. The court found by clear and convincing evidence that W.C. constructively
abandoned his child, failed to comply with the court-ordered services, and engaged in criminal
conduct that resulted in conviction and imprisonment and inability to care for his child for not
less than two years from the date of the filing of the petition; and that termination of his parental
rights was in his child’s best interest. Tex. Fam. Code § 161.001(b)(1)(N), (O), (Q), (2). The
trial court thereafter signed a final decree of termination that incorporated the interlocutory
decree. W.C.’s appeal followed.
Analysis
W.C. raises three issues on appeal. W.C. contends that the evidence was legally
and factually insufficient to support the trial court’s predicate grounds and best interest findings
and that the trial court abused its discretion in making its conservatorship finding “where its
termination order was based on insufficient evidence.”
Standard of Review
To terminate parental rights, the Department has the burden to prove one of the
predicate grounds in section 161.001(b)(1) of the Texas Family Code and that termination is in
the best interest of the child. See id. § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex.
2003). The applicable standard of proof is the clear and convincing standard. Tex. Fam. Code
§ 161.206(a); see In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (explaining that due process
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requires clear and convincing standard of proof in parental termination cases). The clear and
convincing standard is “that measure or degree of proof which 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.”
In re C.H., 89 S.W.3d 17, 23 (Tex. 2002) (quoting State v. Addington, 588 S.W.2d 569, 570
(Tex. 1979)); see Tex. Fam. Code § 101.007 (defining “clear and convincing evidence”).
Although “parental rights are of constitutional magnitude,” “it is also essential that emotional
and physical interests of the child not be sacrificed merely to preserve that right.” In re C.H.,
89 S.W.3d at 26.
Legal sufficiency review of the evidence to support a termination finding requires
a court to look at all the evidence in the light most favorable to the finding and consider
undisputed contrary evidence to determine whether a reasonable trier of fact could have formed a
firm belief or conviction that its finding was true. In re A.C., 560 S.W.3d 624, 630–31 (Tex.
2018); In re J.F.C., 96 S.W.3d at 266. “Factual sufficiency, in comparison, requires weighing
disputed evidence contrary to the finding against all the evidence favoring the finding.” In re
A.C., 560 S.W.3d at 631. “Evidence is factually insufficient if, in light of the entire record, the
disputed evidence a reasonable factfinder could not have credited in favor of a finding is so
significant that the factfinder could not have formed a firm belief or conviction that the finding
was true.” Id.; see In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (explaining that, in factual
sufficiency review, court of appeals “should not supplant [fact-finder]’s judgment with its own”);
In re C.H., 89 S.W.3d at 25 (describing factual sufficiency review).
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Predicate Grounds
The trial court found that the Department met its burden as to three predicate
grounds. See Tex. Fam. Code § 161.001(b)(1)(N), (O), (Q). Because termination of a parent’s
rights can stand on one statutory ground plus a best interest finding, we limit our review to
W.C.’s challenge to the sufficiency of the evidence to support the ground set out in section
161.001(b)(1)(O) of the Family Code. See id. § 161.001(b)(1)(O); In re N.G., 577 S.W.3d 230,
232–33 (Tex. 2019) (explaining that only one predicate ground is necessary to support
termination of parental rights when there is also best interest finding); In re A.V., 113 S.W.3d at
362 (same).
“[T]o terminate parental rights under section 161.001(b)(1)(O): (1) the parent
must have failed to comply with the provisions of a court order, which (2) specifically
established the actions necessary for the parent to receive custody of the child from the
Department, which serves as the permanent or temporary conservator of the child.” See In re
N.G., 577 S.W.3d at 237 (citing Tex. Fam. Code § 161.001(b)(1)(O)).3 “A trial court order
referenced by section 161.001(b)(1)(O) is a mandate or directive that establishes some steps or
actions necessary for the parent to obtain return of the child who is in the Department’s custody.”
Id. at 238. Partial or substantial compliance with the court order is not enough to avoid a
termination finding under section 161.001(b)(1)(O). In re A.L.J., No. 01-19-00251-CV,
2019 Tex. App. LEXIS 8534, at *12 (Tex. App.—Houston [1st Dist.] Sept. 24, 2019, no pet.)
(mem. op.). A court, however, “may not order termination under Subsection (b)(1)(O) based on
3 W.C. does not challenge the sufficiency of the evidence to support that, at the time of
trial, the child had been in the permanent or temporary conservatorship of the Department “for
not less than nine months as a result of the child’s removal from the parent under Chapter 262 for
the abuse of neglect of the child.” Tex. Fam. Code § 161.001(b)(1)(O).
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the failure by the parent to comply with a specific provision of a court order if a parent proves by
a preponderance of the evidence that: (1) the parent was unable to comply with specific
provisions of the court order; and (2) the parent made a good faith effort to comply with the
order and the failure to comply with the order is not attributable to any fault of the parent.” Tex.
Fam. Code § 161.001(d).
W.C. acknowledges that he “did not complete his service plan” but argues that he
“engaged in the services available to him as they became available” and that “he would be
released from [prison] in a matter of months, at which point he would be able to continue
completing his services.” W.C. testified that he was eligible for parole in January 2020. He also
relies on his testimony that the caseworker was unable to stay in contact with him, “despite his
best efforts to seek her guidance,” and that she provided him with incorrect advice when they did
communicate. According to W.C., the caseworker advised him that the drug test requirement
could be satisfied “through his probation instead of through his engagement in drug test
services.” W.C. also focuses on the caseworker’s resignation during the pendency of the case
and her supervisor’s testimony that the caseworker resigned while she was being investigated for
allegedly making misrepresentations to the court in another case. He relies on this testimony to
support his position that “[a] parent should not be punished for failing to complete a service
plan if CPS provides a plan that is impossible to comply with, refuses to explain, and
interprets incorrectly.”
The supervisor, however, testified that she reviewed the entire file in this case and
did not see any impropriety in how the caseworker handled this case. The trial court’s order in
this case also provides specifics, such as contact information and locations, and the caseworker
testified about the specific actions that W.C. was court ordered to complete but failed to do. She
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testified that he did not complete “OSAR, random drug testing, Resolution Counseling,
Nurturing Parenting classes, obtain and maintain stable housing, visits.” She further testified
that, as to the one drug test request that he did comply with on October 17, 2018, the result of the
test was positive for amphetamines. She also confirmed that a referral was sent but that he did
not complete the Nurturing Parenting Program and that he visited his child twice out of a
possible 15 times during the portion of the case in which he was not incarcerated.
After carefully reviewing the record, we conclude that the trial court was
presented with evidence that was legally and factually sufficient to support its finding that W.C.
failed to comply with specific, itemized actions contained within the trial court’s order that were
required to obtain the return of his child. See In re N.G., 577 S.W.3d at 239; In re S.B.,
No. 07-19-00146-CV, 2019 Tex. App. LEXIS 9695, at *24–29 (Tex. App.—Amarillo
Nov. 5, 2019, pet. denied) (mem. op.) (concluding that “the trial court was presented with clear
and convincing evidence sufficient to support a finding that [the parent] failed to comply with
specific, itemized tasks contained within a court order required to obtain the return of her child”).
Further, to the extent that W.C. is relying on section 161.001(d) of the Family
Code, the trial court reasonably could have found that W.C. did not meet his burden to show that
he made a good faith effort to comply with the court order or that his failure to comply was not
attributable to his own fault. See Tex. Fam. Code § 161.001(d). Although W.C. argues that he
would have been able to complete his services after he was released from prison, the earliest
W.C. could have been released from prison according to his own testimony was in January 2020,
the same month of this case’s extended dismissal date. The evidence also showed that he did not
comply with the court-ordered services during the time period that the case was pending and he
was not incarcerated. The trial court, as the trier of fact, reasonably could have resolved
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credibility issues and conflicts in the evidence against W.C. to discredit W.C.’s testimony about
the reasons that he did not comply with the court order and to find that W.C.’s own fault was
attributed to his failure to comply. See In re J.J.O., 131 S.W.3d 618, 632 (Tex. App.—Fort
Worth 2004, no pet.) (explaining that, in bench trial, trial court determines credibility of
witnesses and weight to be accorded to their testimony).
Having found the evidence legally and factually sufficient to support the predicate
ground set out in section 161.001(b)(1)(O), we overrule W.C.’s first issue and do not address the
trial court’s findings as to the other two predicate grounds. See In re N.G., 577 S.W.3d at 232–
33; In re A.V., 113 S.W.3d at 362.
Best Interest
In his second issue, W.C. challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination of W.C.’s parental rights was in his
child’s best interest. See Tex. Fam. Code § 161.001(b)(2).
Relevant factors in assessing the best interest of a child include: (i) the desires of
the child, (ii) the stability of the home or proposed placement, (iii) parental abilities, (iv) the
emotional and physical needs of the child now and in the future, (v) the emotional and physical
danger to the child now and in the future, (vi) the plans for the child by the individual or agency
seeking custody, (vii) the programs available to assist the individuals seeking custody to promote
the best interest of the child, (viii) acts or omissions by the parent showing that the parent-child
relationship was not proper, and (ix) any excuses for the parent’s conduct. Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976); see also Tex. Fam. Code § 263.307 (stating that “prompt
and permanent placement of the child in a safe environment is presumed to be in the child’s best
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interest” and listing factors that court should consider “in determining whether the child’s
parents are willing and able to provide the child with a safe environment”). No one factor is
controlling, and evidence presented to satisfy the predicate ground finding may also be probative
of the child’s best interest. In re C.H., 89 S.W.3d at 27–28; Pruitt v. Texas Dep’t of Family &
Protective Servs., No. 03-10-00089-CV, 2010 Tex. App. LEXIS 10272, at *22–23 (Tex. App.—
Austin Dec. 23, 2010, no pet.) (mem. op.).
At the time of trial, W.C.’s child was just over one year old, had been in the
Department’s care for all but a few days of his life, was placed in a non-relative home with his
siblings, and was doing well in that placement. W.C. testified that he loved his child, wanted to
remain his father, and was “trying to be responsible for his [child],” and the CASA volunteer
testified that, “according to the notes, the visits [between W.C. and his child] seemed very
appropriate.” The evidence, however, also showed that W.C. failed to comply with the
court-ordered services for the return of his child, visited with his child only twice out of
15 possible times before he was incarcerated, and remained incarcerated at the time of trial. The
CASA volunteer testified that W.C. did not have a relationship with the child and agreed that
W.C. had been in jail or prison since November or December of 2018.
The exhibits included the March 2019 judgment revoking W.C.’s community
supervision and sentencing him to three years’ confinement. The judgment reflects that W.C.
pleaded true to the State’s motion to revoke his community supervision. See In re D.M.,
58 S.W.3d 801, 817 (Tex. App.—Fort Worth 2001, no pet.) (considering parent’s “inability to
maintain lifestyle free from arrests and incarcerations” in best interest determination). The
caseworker further testified that W.C. tested positive for amphetamines in October 2018 and that,
prior to being incarcerated, W.C. was homeless for most of that time and did not have reliable
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access to transportation, and “it was iffy” if she could reach him by telephone. See D.T. v. Texas
Dep’t of Family & Protective Servs., No. 03-18-00770-CV, 2019 Tex. App. LEXIS 2797, at
*13–16 (Tex. App.—Austin Apr. 9, 2019, no pet.) (mem. op.) (concluding that evidence
supported best interest finding and citing in support of conclusion evidence that showed parent’s
ongoing drug use during case and instability).
“A trial court can measure the future conduct of parents by their recent past
conduct but is not required to believe that there has been a lasting change in a parent’s attitude
since his or her children were taken.” In re J.J.O., 131 S.W.3d at 632. Based on W.C.’s actions
before and during the pendency of the case, the trial court could have found W.C.’s testimony
that he was “trying to be responsible” not credible and concluded that W.C. did not have the
stability in his life or capability to parent a toddler in a safe and healthy way. See id.; Rios v.
Texas Dep’t of Family & Protective Servs., No. 03-11-00565-CV, 2012 Tex. App. LEXIS 5724,
at *29–32 (Tex. App.—Austin July 11, 2012, no pet.) (mem. op.) (concluding evidence was
sufficient to support best interest finding when there was evidence that parent was incarcerated
after revocation of probation and had “no home—stable or otherwise” even though there
was evidence that parent had taken parenting and drug-education classes during his
incarceration); see also M.R. v. Texas Dep’t of Family & Protective Servs., No. 03-17-00715-
CV, 2018 Tex. App. LEXIS 1445, at *8 (Tex. App.—Austin Feb. 23, 2018, no pet.) (mem. op.)
(“The need for permanence is the paramount consideration when determining a child’s present
and future physical and emotional needs.”); In re D.S.A., 113 S.W.3d 567, 574 (Tex. App.—
Amarillo 2003, no pet.) (concluding that evidence was sufficient to support best interest finding
when there was evidence that parent had unstable employment history, violated probation which
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resulted in incarceration, had substance abuse issues, failed to visit with child when parent had
the opportunity to do so, and failed to comply with service plan).
Viewing the evidence under the legal sufficiency standard of review, we conclude
that the trial court could have formed a firm belief or conviction that terminating W.C.’s parental
rights was in his child’s best interest. See Tex. Fam. Code § 161.001(b)(2); In re A.C.,
560 S.W.3d at 630–31; In re J.F.C., 96 S.W.3d at 266. Further, viewing the evidence under the
factual sufficiency standard of review, we conclude that the evidence is such that the trial court
reasonably could have formed a firm belief or conviction that termination of W.C.’s parental
rights was in his child’s best interest. See In re A.C., 560 S.W.3d at 631; In re C.H., 89 S.W.3d
at 25. Thus, we conclude that the evidence was legally and factually sufficient to support the
trial court’s best interest finding. We overrule W.C.’s second issue.
Conservatorship Finding
In his third issue, W.C. argues that the trial court abused its discretion “in making
its conservatorship finding where its termination order was based on insufficient evidence.”
Because W.C.’s third issue is contingent on this Court sustaining his first or second issue and we
have overruled those issues, we overrule W.C.’s third issue.
Conclusion
For these reasons, we affirm the trial court’s final decree terminating the parental
rights of W.C. and Z.B.4
4 As he acknowledges in the brief, Z.B.’s counsel’s obligation to his client has not yet
been discharged. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam). If Z.B., after
consulting with counsel, desires to file a petition for review, counsel should timely file with the
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__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Kelly, and Smith
Affirmed
Filed: March 18, 2020
Texas Supreme Court “a petition for review that satisfies the standards for an Anders brief.” See
id. at 27–28.
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