in the Interest of L.W. and M.W., Children ( 2021 )

Opinion filed January 14, 2021
In The
Eleventh Court of Appeals
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No. 11-20-00165-CV
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IN THE INTEREST OF L.W. AND M.W., CHILDREN
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV 18-09-400
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and father of L.W. and M.W. Only the mother appealed. On
appeal, she presents five issues in which she challenges the legal and factual
sufficiency of the evidence to support the trial court’s findings. 1 We affirm the trial
court’s order of termination.
1
We note that, as seems to be common practice for him, Brown County Attorney Shane Britton
failed to file a brief on behalf of Appellee. See Reich v. State, No. 11-18-00355-CR, 2020 WL 7034631, at
*1 (Tex. App.—Eastland Nov. 30, 2020, no pet.) (mem. op., not designated for publication).
I. Issues Presented
In Appellant’s first issue, which she refers to as Issue 1(a), Appellant
challenges the legal and factual sufficiency of the evidence in support of the trial
court’s finding that termination of Appellant’s parental rights would be in the best
interest of L.W. and M.W. In her second, third, and fourth issues, which she refers
to as Issues 1(b), 1(c), and 1(d), Appellant challenges the legal and factual
sufficiency of the evidence in support of the trial court findings related to Appellant’s
endangering of the children and Appellant’s failure to comply with certain conditions
imposed on her. In her fifth issue, which she refers to as Issue 1(e), Appellant
challenges the sufficiency of the evidence related to her ability to comply and her
good faith effort to comply with the conditions imposed on her.
II. Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2020). To terminate
parental rights, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id.
In this case, the trial court found that Appellant had committed three of the
acts listed in Section 161.001(b)(1)—those found in subsections (D), (E), and (O).
Specifically, the trial court found (1) that Appellant had knowingly placed or
knowingly allowed the children to remain in conditions or surroundings that
endangered the children’s physical or emotional well-being, (2) that Appellant had
engaged in conduct or knowingly placed the children with persons who engaged in
conduct that endangered the children’s physical or emotional well-being, and (3) that
Appellant had 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, who had
been in the managing conservatorship of the Department of Family and Protective
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Services for not less than nine months as a result of the children’s removal from the
parents for abuse or neglect. The trial court also found, pursuant to
Section 161.001(b)(2), that termination of Appellant’s parental rights would be in
the best interest of the children.
To determine if the evidence is legally sufficient in a parental termination case,
we review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the
evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or
conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002). We note that the trial court is the sole arbiter of the credibility
and demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (citing In
re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (1) the desires of the child, (2) the emotional and physical needs of the
child now and in the future, (3) the emotional and physical danger to the child now
and in the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.Additionally, evidence that proves one or more statutory grounds for termination
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may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
III. Evidence Presented at Trial
The record shows that the Department became involved with Appellant in
2018, when L.W. was six years old and M.W. was five years old. Authorities were
summoned to Appellant’s residence due to incidents of domestic violence between
Appellant and her husband, who is the children’s father. Although the initial intake
related to domestic violence, the parents’ drug use quickly became a secondary
reason for the Department’s continued involvement with the family. Both parents
tested positive for methamphetamine, and Appellant also tested positive for
marihuana. Appellant admitted that she and her husband used methamphetamine
together.
After the children were removed, Appellant and the Department participated
in the creation of a family service plan. The trial court made the family service plan
an order of the court. Appellant, however, did not comply with the provisions of her
service plan. She continued to test positive for drugs and eventually quit submitting
to the drug tests that were requested by the Department. The record indicates that
Appellant tested positive for methamphetamine in September 2018, February 2019,
and May 2019; that she tested positive for marihuana in September 2018,
October 2018, November 2018, December 2018, January 2019, and March 2019;
and that she no-showed once in February 2019, could not be located in April or early
May 2019, and refused to submit to drug tests as requested from June 2019 through
December 2019. Because of her continued drug use, Appellant was not permitted to
have visitation with the children. In addition to the drug-related issues, Appellant
failed to complete counseling, failed to keep the Department apprised of her address
and the people with whom she lived, and failed to complete classes required by her
service plan.
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Both children had issues—psychological, social, and educational—that could
be attributed to the conduct of the parents. The children lied regularly, exhibited
physically assaultive behaviors, were not easily redirected, and made age-
inappropriate comments about looking “sexy.” The children had witnessed their
parents engaging in sexual acts. Both children had mood disorders, had ADHD,
were dyslexic, and were behind in school. While in foster care, L.W. was diagnosed
with oppositional defiant disorder, and M.W. sometimes “self-harm[ed]” when she
got upset at school. By the time of the final hearing on termination, both children’s
behavioral issues had improved dramatically, especially M.W.’s; however, some of
their behavioral issues persisted.
The record shows that, upon removal, the children were initially placed with
a relative. Soon thereafter, when that relative was no longer able to care for the
children, they were placed in an experienced, therapeutic foster home. The children
remained in that home at the time of trial. The foster mother testified about the
children’s behavioral issues and the strides that both children had made during the
approximately twenty-one months that the children had been living with the foster
parents. Nevertheless, despite the children’s behavioral improvements, the children
would continue to need “a lot of really dedicated one-on-one time.” Although the
foster parents with whom the children had been placed were committed to helping
the children transition to a forever home, they were not an option for permanent
placement or adoption of the children.
The attorney/guardian ad litem for the children informed the trial court that
the children wished to be returned to their parents. The attorney/guardian ad litem
also indicated that he believed that it would be traumatic to the children for the
parents’ parental rights to be terminated and that, “if they can’t be placed back with
the parents, then the second choice I believe is -- the best interest of the children is
to be placed with [the maternal grandmother].” The record indicates, however, that
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placement with the maternal grandmother was not an option for the Department
because she failed the home study; had felony criminal history, including a
conviction for possession of methamphetamine in 2007; had “CPS” history; and
tested positive for methamphetamine in one test that was administered by the
Department.2
The children’s foster mother and the conservatorship worker did not agree
with the recommendation of the children’s attorney/guardian ad litem, who,
according to the foster mother, had only visited with the children twice during the
time that the children had been in foster care. Furthermore, the maternal
grandmother, her husband, and the paternal great-aunt, all of whom wanted the
children to remain with family, had indicated that the children would be in danger if
returned to Appellant and the children’s father. The maternal grandmother had
previously stated that she did not believe that Appellant or the children’s father
would change their behaviors and that termination of the parents’ parental rights
would be in the children’s best interest.
IV. Analysis
In her second, third, and fourth issues, Appellant challenges the legal and
factual sufficiency of the evidence to prove grounds (D), (E), and (O). We need only
address her challenge to the trial court’s finding under Section 161.001(b)(1)(E). See
In re N.G., 577 S.W.3d 230, 234–35 (Tex. 2019) (addressing due process and due
course of law with respect to appellate review of grounds (D) and (E) and holding
that an appellate court must provide a detailed analysis if affirming the termination
on either of these grounds).
2
Appellant asserts that another child, who had been placed with the maternal grandmother under a
CPS “safety plan,” was permitted to remain in her care despite the allegedly positive drug test. We note
that that child was not Appellant’s child and was not in any way involved in the proceedings at issue in this
appeal.
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Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and conscious
course of conduct by the parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex.
App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex.
App.—Eastland 1999, no pet.). The offending conduct need not be directed at the
child, nor does the child actually have to suffer an injury. In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009). Drug use may constitute evidence of endangerment. Id. A
parent’s drug addiction and its effect on the parent’s life and ability to parent a child
may establish an endangering course of conduct. In re J.T.G., 121 S.W.3d 117, 125–
26 (Tex. App.—Fort Worth 2003, no pet.) (citing Dupree v. Tex. Dep’t of Protective
& Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ)).
Further, domestic violence may also constitute evidence of endangerment. C.J.O.,
325 S.W.3d at 265.
Here, based upon evidence of domestic violence between Appellant and the
children’s father while the children were in their care, Appellant’s use of
methamphetamine and marihuana while the children were in her care, Appellant’s
continued use of drugs after removal, and Appellant’s apparent exposure of the
children to sexual acts between the parents, the trial court could have reasonably
found by clear and convincing evidence that Appellant had engaged in a course of
conduct that endangered her children. Therefore, we hold that the evidence is legally
and factually sufficient to uphold the trial court’s finding as to Appellant under
subsection (E). Accordingly, we overrule Appellant’s third issue. Because only one
statutory ground is necessary to support termination and because we have upheld the
trial court’s finding as to subsection (E), we need not address Appellant’s second and
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fourth issues. See FAM. § 161.001(b)(1); N.G., 577 S.W.3d at 234–35; see also
TEX. R. APP. P. 47.1. Furthermore, we need not address Appellant’s fifth issue
because it is dependent upon the fourth issue. See FAM. § 161.001(b)(1)(O), (d); see
also TEX. R. APP. P. 47.1.
In her first issue, Appellant challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination of her parental rights
was in the best interest of L.W. and M.W. Before the children were removed,
Appellant and the children’s father engaged in domestic violence and used
methamphetamine together. Appellant continued to use drugs after her children were
removed from her care, and she failed to complete the services that were required
for the children to be returned to Appellant.
The children had been placed in a therapeutic foster home where all of their
needs were being met. The record shows that the Department had not searched for
prospective adoptive parents other than relatives but that it would begin that search
after the termination hearing. The children had been in foster care for twenty-one
months, during which time they had not seen Appellant because she did not provide
three consecutive clean drug tests. Appellant wanted the children to be placed with
Appellant’s mother; however, neither Appellant’s mother nor various other relatives
were viable options as placement for the children. The Department’s goal for the
children at the time of trial was for the parents’ parental rights to be terminated and
for the children to be adopted.
Based on the evidence presented in this case, we defer to the trial court’s
finding as to the children’s best interest. See C.H., 89 S.W.3d at 27. We hold that,
in light of the evidence presented at trial and applying the Holley factors, the trial
court could reasonably have formed a firm belief or conviction that termination of
Appellant’s parental rights would be in L.W.’s and M.W.’s best interest. See Holley,
544 S.W.2d at 371–72. Upon considering the record as it relates to the desires of the
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children (who loved their parents and wished to live with them), the emotional and
physical needs of the children now and in the future, the emotional and physical
danger to the children now and in the future, the parental abilities of those involved,
the plans for the children by the Department, Appellant’s continued use of
methamphetamine, and the instability of Appellant’s situation, we further hold that
the evidence is legally and factually sufficient to support the trial court’s finding that
termination of Appellant’s parental rights is in the best interest of L.W. and M.W.
See id. Irrespective of Appellant’s assertion, we cannot hold that the trial court’s
best interest finding is not supported by clear and convincing evidence. Accordingly,
we overrule Appellant’s first issue.
V. This Court’s Ruling
We affirm the order of the trial court.
W. STACY TROTTER
JUSTICE
January 14, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Wright, S.C.J. 3
Williams, J., not participating.
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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