in the Interest of J.S., a Child ( 2021 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00084-CV
IN THE INTEREST OF J.S., A CHILD
On Appeal from the County Court at Law
Panola County, Texas
Trial Court No. 2019-196
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
The Department of Family and Protective Services (Department) brought a petition for
protection of a child, for conservatorship, and for termination of Mother’s parental rights to one-
month-old J.S.1 Following a bench trial, the trial court found that termination of the parent-child
relationship was in the child’s best interest and terminated Mother’s parental rights pursuant to
Section 161.001(b)(1), grounds (D), (E), and (O), and Section 161.001(b)(2) of the Texas Family
Code. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)D), (E), (O), (b)(2). Mother’s appeal
challenges the legal and factual sufficiency of the evidence as to the best-interest finding and to
the grounds of termination. Because we conclude that the grounds of termination and the best-
interest finding are supported by clear and convincing evidence, we affirm the trial court’s
judgment.2
“The natural right existing between parents and their children is of constitutional
dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to
make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel
v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates
fundamental interests, a higher standard of proof—clear and convincing evidence—is required at
trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). “‘Clear and convincing
1
To protect the child’s privacy, we refer to appellant as Mother and to the child by initials. See TEX. R. APP. P.
9.8(b)(2).
2
Father’s parental rights were terminated in accordance with his voluntary affidavit of relinquishment. Father did
not appeal the order of termination.
2
evidence’ is that ‘degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.’” Id. (quoting TEX. FAM.
CODE ANN. § 101.007 (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). Based on this
standard, we are required to “engage in an exacting review of the entire record to determine if the
evidence is . . . sufficient to support the termination of parental rights.” Id. (quoting A.B., 437
S.W.3d at 500).
Yet, “[d]espite the profound constitutional interests at stake in a proceeding to terminate
parental rights, ‘the rights of natural parents are not absolute; protection of the child is
paramount.’” Id. at 344 (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re
J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)) (citing In re M.S., 115 S.W.3d 534, 547 (Tex. 2003)).
“A child’s emotional and physical interests must not be sacrificed merely to preserve parental
rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.)).
“In our legal sufficiency review, we consider all the evidence in the light most favorable
to the findings to determine whether the fact-finder reasonably could have formed a firm belief
or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920
(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)
(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We
assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a
reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have
reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing
J.P.B., 180 S.W.3d at 573).
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“In our review of factual sufficiency, we give due consideration to evidence the trial
court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209
S.W.3d 105, 109 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder
reasonably could have found to be clear and convincing and determine ‘whether the evidence is
such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the
. . . allegations.’” Id. (quoting H.R.M., 209 S.W.3d at 109 (quoting In re C.H., 89 S.W.3d 17, 25
(Tex. 2002)) (citing In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002)). “If, in light of the entire
record, the disputed evidence that a reasonable fact-finder could not have credited in favor of the
finding is so significant that a fact-finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” Id. (quoting J.F.C., 96 S.W.3d at 266).
“Only one predicate finding under Section 161.001[(b)](1) is necessary to support a
judgment of termination when there is also a finding that termination is in the child’s best
interest.” In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting
A.V., 113 S.W.3d at 362) (citing In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011,
no pet.)). Because the trial court’s findings under grounds D and E “may have implications for
. . . parental rights to other children,” due process demands that we review the trial court’s
findings under each of those grounds. In re N.G., 577 S.W.3d 230, 234 (Tex. 2019).
(1) Sufficient Evidence Supports Termination Under Grounds D and E
When the record demonstrates clear and convincing evidence that a parent has
“knowingly placed or knowingly allowed the child to remain in conditions or surroundings
which endanger the physical or emotional well-being of the child,” termination is proper on
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ground D. TEX. FAM. CODE ANN. § 161.001(b)(1)(D). “A child is endangered when the
environment creates a potential for danger that the parent is aware of, but disregards.” In re
N.B., No. 06-12-00007-CV, 2012 WL 1605457, at *9 (Tex. App.—Texarkana May 8, 2012, no
pet.) (mem. op.). “‘Environment’ refers to the acceptability of the child’s living conditions and a
parent’s conduct in the home.” In re D.A.B., No. 04-19-00629-CV, 2020 WL 1036433, at *3
(Tex. App.—San Antonio Mar. 4, 2020, no pet.). “[S]ubsection (D) permits termination [of
parental rights] based on a single act or omission [by the parent].” In re L.C., 145 S.W.3d 790,
797 (Tex. App.—Texarkana 2004, no pet.); see In re A.B., 125 S.W.3d 769, 776 (Tex. App.—
Texarkana 2003, pet. denied). “Inappropriate, abusive, or unlawful conduct by a parent . . . can
create an environment that endangers the physical and emotional well-being of a child as
required for termination under subsection (D).” In re C.J.B., No. 05-19-00165-CV, 2019 WL
3940987, at *6 (Tex. App.—Dallas Aug. 21, 2019, no pet.) (mem. op.). “Endanger” means, for
purposes of grounds D and E, “to expose to loss or injury; to jeopardize.” Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see L.E.S., 471 S.W.3d at 923.
Termination is permitted on ground E when there is clear and convincing evidence that
the parent “engaged in conduct . . . which endangers the physical or emotional well-being of the
child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). “It is not necessary that the conduct be
directed at the child or that the child actually suffer injury.” L.E.S., 471 S.W.3d at 923. “Under
subsection (E), it is sufficient that the child’s well-being is jeopardized or exposed to loss or
injury.” Id. (citing Boyd, 727 S.W.2d at 533; N.S.G., 235 S.W.3d at 367). “Further, termination
under subsection (E) must be based on more than a single act or omission. Instead, a ‘voluntary,
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deliberate, and conscious course of conduct by the parent is required.’” Id. (quoting Perez v.
Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004,
no pet.) (citing In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.))).
“Courts may further consider parental conduct that did not occur in the child’s presence,
including conduct before the child’s birth or after the child was removed from a parent’s care.”
Id. Because they are interrelated, we consolidate our examination of grounds D and E.
Department investigator Cordia Page received a report in May 2019, when J.S. was one
month old, that Mother and her mother (Grandmother) were both using methamphetamine and
were living with J.S. in a home that lacked electricity. When Page visited Mother at her home,
she confirmed that J.S. was living there with Mother and Grandmother and that, although the
home was clean, it lacked electricity. Both Mother and Grandmother denied using
methamphetamine. A few days later, Page took Mother for a drug test. Mother refused a hair-
follicle test but did submit to a urinalysis.3 The results showed that Mother was positive for
methamphetamine.4 Despite these test results, Mother claimed that she did not use
methamphetamine, but only tested positive because her ex-boyfriend used methamphetamine.5
As a result of the positive drug test, Page determined that it was unsafe to leave J.S. in the home
and placed him in the care of the Department.
3
According to Page, Mother claimed that a hair-follicle test was against her religion.
4
Page also testified that Grandmother tested positive for methamphetamine but did not indicate whether
Grandmother was tested at the same time as Mother was tested.
5
J.S. was not tested.
6
Following her positive drug test in May 2019, on both January 28, 2020, and
September 16, 2020, Mother again tested positive for methamphetamine. Mother did not show
up for the majority of the twenty-four drug tests the Department requested because, as Mother
explained at trial, she “knew [she] was going to fail, and . . . didn’t want to [give] them ammo to
use against [her].” Mother’s methamphetamine use began well before 2019. She originally
started using methamphetamine when she was married to the father of her third child sometime
in 2017 or 2018. Although Mother did not use methamphetamine during her pregnancy with
J.S., she admitted to using methamphetamine with Grandmother before she became pregnant
with J.S. and continued to do so after J.S. was born. Her then husband also used
methamphetamine. Mother testified that, after she had J.S., she did not often use
methamphetamine, but began using the drug more frequently after the Department removed J.S.
According to Mother, she last used methamphetamine one month before trial, in September
2020. Mother did not attend any type of drug counseling within the three-month period before
trial.
Mother also experienced problems with domestic violence and admitted that that had
been “a really big issue” for her. She explained that she was living on her own when she gave
birth to J.S. and that Grandmother was staying with her, off and on. At that time, Mother still
had contact with an abusive boyfriend and eventually moved in with him after the Department
removed J.S. While the case involving J.S. was ongoing, Mother and her boyfriend smoked
methamphetamine together. Mother testified that she called the police more than five times
before pressing charges against her boyfriend for assaulting her. Mother made a final break from
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her boyfriend approximately two months before trial, after he burned her in the face with a
cigarette.
Mother’s history of drug use and her struggle with domestic violence is reflected in
previous Department interventions on behalf of Mother’s other three children. Mother’s oldest
child is eleven years’ old, and her other children are ages nine and seven. The oldest two
children were removed by the Department and were placed with Mother’s paternal grandmother
due to violence in the home wrought by Mother’s boyfriend, who was also using drugs.
Mother’s parental rights to her middle child were terminated in 2012 after she tested positive for
drugs during pregnancy.6 That child lives with his paternal grandmother.
From May 2019 until the time of trial in October 2020, Mother has lived in different
situations—with friends, a boyfriend, Grandmother, and her grandmother—with lengths of stays
varying from a few days to a few weeks at a time. Mother was employed at a restaurant before
the COVID-19 pandemic. Since that time, she has worked at Sam’s and Gen-Pack. At the time
of trial, Mother was unemployed.
Tommie Rivers, a Department conservatorship worker, testified that Mother’s family
service plan required her to undergo a substance abuse assessment and a mental health
assessment, submit to random drug tests, and attend parenting, counseling, budgeting, and
intimate partner violence classes.7 She was also required to provide a stable home for J.S. and
6
Although the Department pled for termination on ground M, that ground was not included in the order of
termination. See TEX. FAM. CODE ANN. § 161.001(b)(1)(M) (parent “had his or her parent-child relationship
terminated with respect to another child based on a finding that the parent’s conduct was in violation of Paragraph
(D) or (E)”).
7
When the case began, Mother was involved in an abusive relationship.
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maintain employment. Mother did not fulfill these requirements. Although Mother completed a
substance abuse assessment and three in-person substance abuse counseling sessions, she began
missing her virtual sessions after the pandemic began, and she was discharged. Mother did not
participate in psychological counseling or intimate partner violence counseling.
It is apparent that Mother struggled with drug addiction before this case began and
continued in that struggle throughout the case. Mother freely spoke of her methamphetamine use
at trial and at the time the Department removed J.S. from her care. Mother tested positive for
methamphetamine in December 2019 and in September 2020, only one month before trial.
Beyond that, she did not show up for her drug tests because she knew that she would test
positive. After Mother brought J.S. home from the hospital, both she and Grandmother
continued to use methamphetamine. Mother did not complete substance abuse counseling and
showed little to no interest in working services to be reunited with J.S. Mother’s drug use and
involvement with an abusive boyfriend, who also used drugs, resulted in the previous removal of
Mother’s two oldest children. Mother’s drug use during pregnancy with her third child in 2012
resulted in the termination of Mother’s parental rights to that child.
“‘Drug addiction and its effect on a parent’s life and ability to parent may establish an
endangering course of conduct’ by a parent sufficient to support a petition to terminate parental
rights.” O.R.F., 417 S.W.3d at 38. Mother’s failure to “remain drug-free while under the
Department’s supervision will support a finding of endangering conduct under subsection (E)
even if there is no direct evidence that the parent’s drug use actually injured the child”
“[b]ecause it exposes the child to the possibility that the parent may be impaired or imprisoned.”
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Id. (quoting Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied)). “Moreover, illegal drug use by a parent likewise
supports the conclusion that the children’s surroundings endanger their physical or emotional
well-being.” L.E.S., 471 S.W.3d at 925 (citing In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—
Fort Worth 2003, no pet.)); see In re N.B., No. 06-12-00007-CV, 2012 WL 1605457, at *9 (Tex.
App.—Texarkana May 8, 2012, no pet.) (mem. op.). “Indeed, the effect of drug use on a
parent’s life and ‘ability to parent may establish an endangering course of conduct.’” In re K.D.,
No. 06-17-00068-CV, 2017 WL 5504407, at *5 (Tex. App.—Texarkana Nov. 17, 2017, no pet.)
(quoting In re J.L.B., 349 S.W.3d 836, 848 (Tex. App.—Texarkana 2011, no pet.)).
Mother was also involved in an abusive relationship at the time of J.S.’s removal and
remained in that relationship until shortly before trial. Domestic violence—like drug
addiction—had been an ongoing problem in Mother’s life over several years. Mother’s
entanglement with an abusive boyfriend resulted, at least in part, in the removal of two of her
children. “A fact-finder ‘can consider the history of abuse between the mother and the father for
purposes of subsection[] . . . (E), even if the children are not always present.’” In re Z.M., 456
S.W.3d 677, 686 (Tex. App.—Texarkana 2015, no pet.) (quoting In re A.V.M., No. 13-12-00684-
CV, 2013 WL 1932887, at *5 (Tex. App.—Corpus Christi May 9, 2013, pet. denied) (mem.
op.)). Here, it was undisputed that Mother and her boyfriend had a history of domestic violence.
That said, Mother continued to expose herself to that violence even after J.S. was born. It is also
apparent that Mother had unstable housing during the pendency of the case and was unable to
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remain employed. Mother stayed with her abusive boyfriend as well as Grandmother, both of
whom used methamphetamine.
Considering the entire record, we conclude that the evidence is both legally and factually
sufficient to support termination under grounds D and E. As a result, we overrule these points of
error.8
(2) Sufficient Evidence Supports the Finding that Termination Was in J.S.’s Best Interest
“There is a strong presumption that keeping a child with a parent is in the child’s best
interest.” In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus
Christi Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (per curiam)). “Termination ‘can never be justified without the most solid and substantial
reasons.’” In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting
Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).
In determining the best interests of the child, courts consider the following Holley factors:
(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, (6) the plans for the child by these
individuals, (7) the stability of the home, (8) the acts or omissions of the parent
that may indicate the existing parent-child relationship is not a proper one, and
(9) any excuse for the acts or omissions of the parent.
Id. at 818–19 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see In re E.N.C.,
384 S.W.3d 796, 807 (Tex. 2012); see also TEX. FAM. CODE ANN. § 263.307(b). “There is no
requirement that the party seeking termination prove all nine factors.” N.L.D., 412 S.W.3d at
8
Because we have concluded that termination is supported by grounds D and E, we need to determine whether
termination was proper on ground O. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O).
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819 (citing In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Further, we may consider evidence used
to support the grounds for termination of parental rights in the best-interest analysis. In re C.H.,
89 S.W.3d 17, 28 (Tex. 2002). “A parent’s inability to provide adequate care for her child, lack
of parenting skills, and poor judgment may be considered when looking at the child’s best
interests.” N.L.D., 412 S.W.3d at 819 (citing In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—
Fort Worth 2003, no pet.)). “Parental drug abuse is also a factor to be considered in determining
a child’s best interests.” Id. (citing In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth
2007, no pet.)).
At the time of trial, J.S. was seventeen months old. He had been in the same placement
since May 2019, when he was one month old and was doing quite well. Mother regularly
exercised her visitation rights with J.S. Due to the pandemic, though, much of Mother’s
visitation was virtual. Although J.S. was too young to tell anyone whether he wished to live with
Mother, Mother testified that J.S. cried when he was separated from his foster parents and
experienced separation anxiety at visitation. This Holley factor weighs somewhat in favor of
termination.
We address the second, third, seventh, and eighth Holley factors together. Given his
young age, J.S.’s emotional and physical needs now and in the future are great. Although
Mother was provided parenting classes to help her understand how to meet the child’s needs,
Mother testified that she did not complete those classes because she thought the person in charge
was “kind of a quack.” Throughout the case, Mother showed little interest in completing
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services to be reunited with J.S., instead choosing to remain with her abusive boyfriend and
engage in illicit drug use.
At the time of trial, Mother had been living in an apartment on her own for about a month
and a half. She had separated from her abusive boyfriend and claimed to have last used
methamphetamine the previous month. She was seeking employment at the time of trial through
the Workforce Innovation and Opportunity program, but her sole source of income was
unemployment benefits. She testified that, if J.S. were returned to her, she would have family
support. She admitted, however, that, although she participated in counseling, she probably
needed additional counseling.
Yet, Rivers testified that she did not believe that Mother was able to provide a safe and
stable home environment for J.S. And, although Mother had made progress and had “wonderful
intentions,” Rivers believed that, due to Mother’s methamphetamine use over a period of years,
she would need an intense in-patient program and then be sober for “quite some time” before she
would be in a position to provide a stable home for J.S. Mother also admitted that, before she
could bring J.S. home, she would need to attend in-patient substance abuse rehabilitation,
something she had failed to complete during the pendency of the case. Despite Mother’s good
intentions, her testimony indicates that she understood that relapse was something that could
easily happen without intensive assistance—something that would subject J.S. to emotional and
physical danger.
Linea Weaver, the Court Appointed Special Advocate supervisor for Harrison, Panola,
and Marion Counties, opined that Mother’s parental rights to J.S. should be terminated because,
13
although the Department offered her services so she could reunite with J.S., Mother did not take
advantage of those services. These Holley factors weigh in favor of termination.
With respect to the fourth Holley factor, the record reflects that Mother’s parental
abilities were lacking—primarily due to her ongoing drug addiction. Mother testified that,
before the Department’s removal of J.S., both she and Grandmother smoked methamphetamine.
Mother smoked methamphetamine outside of the home while Grandmother was inside the house
with J.S. J.S.’s foster parents, who would like to adopt him, have—according to Weaver—raised
a happy, healthy boy who was “doing great” in his foster home. Mother also testified that the
foster parents have done “an awesome job taking care of” J.S., and, although she wanted to be
reunited with J.S., she believed that he would have a better life with his foster parents.
Considering the Holley factors, and in light of all of the evidence, we conclude that the
trial court could have reasonably formed a firm belief or conviction that termination of Mother’s
parental rights was in J.S.’s best interests. As a result, we overrule this issue.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: March 15, 2021
Date Decided: April 7, 2021
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