In the Interest of T. S. S. C., M. M. H. and M. K. W., Children v. the State of Texas ( 2023 )

NO. 12-23-00002-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE
IN THE INTEREST OF T.S.S.C.,
§ COUNTY COURT AT LAW NO. 2
M.M.H. AND M.K.W., CHILDREN
§ ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
In two issues, K.G. appeals the trial court’s order terminating her parental rights. We
affirm.
BACKGROUND
K.G. is the mother of T.S.S.C, M.M.H, and M.K.W. The children’s fathers are S.C.,
N.H., and W.W., respectively. On August 25, 2020, the Texas Department of Family and
Protective Services (the Department) filed an original petition for protection of a child, for
conservatorship, and for termination of parental rights. The Department was appointed
temporary managing conservator of the children, and K.G. and S.C. were allowed limited access
to the children.
After a trial on the merits, the trial court ordered the termination of K.G.’s 1 parental rights
based on findings that clear and convincing evidence supports such termination under
subsections (D), (E), (O), and (P) of Texas Family Code Section 161.001(b)(1) and such
termination is in the children’s best interest. This appeal followed.
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The court also ordered the termination of S.C.’s and W.W.’s parental rights. They are not parties to this
appeal.
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TERMINATION OF PARENTAL RIGHTS
In K.G.’s first issue, she argues that the evidence is legally and factually insufficient to
support the trial court’s finding that termination of her parental rights is in the children’s best
interest.
Standard of Review and Applicable Law
Involuntary termination of parental rights embodies fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.—Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.—Texarkana 1995, writ
denied). Because a termination action “permanently sunders” the bonds between a parent and
child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.
1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.—El Paso 1998, no pet.).
Section 161.001 of the family code permits a court to order termination of parental rights
if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West 2022); In re J.M.T., 39
S.W.3d 234, 237 (Tex. App.—Waco 1999, no pet.). First, the parent must have engaged in any
one of the acts or omissions itemized in the second subsection of the statute. TEX. FAM. CODE
ANN. § 161.001(b)(1); Green v. Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d 213,
219 (Tex. App.—El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, termination
must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.M.T., 39
S.W.3d at 237. Both elements must be established by clear and convincing evidence, and proof
of one element does not alleviate the petitioner’s burden of proving the other. TEX. FAM. CODE
ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237.
The clear and convincing standard for termination of parental rights is both
constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911
S.W.2d at 439. Clear and convincing evidence means “the measure of 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 (West 2019). The burden of proof is
upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.
When confronted with both a legal and factual sufficiency challenge, an appellate court
must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619
S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.—Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must look at all the evidence in the light most
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favorable to the finding to determine whether a reasonable trier of fact could have formed a firm
belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable
fact finder could do so and disregard all evidence that a reasonable fact finder could have
disbelieved or found incredible. Id.The appropriate standard for reviewing a factual sufficiency challenge to the termination
findings is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). In determining whether the fact finder has met this standard, an appellate court considers
all the evidence in the record, both that in support of and contrary to the trial court’s findings. Id.
at 27-29. Further, an appellate court should consider whether disputed evidence is such that a
reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In
re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the
witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575,
580 (Tex. App.—Houston [1st Dist.] 1997, pet. denied).
Best Interest of the Child
In determining the best interest of the child, a number of factors have been considered,
including (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. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976).
The family code also provides a list of factors that we will consider in conjunction with
the Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West 2019). These include (1) the
child’s age and physical and mental vulnerabilities; (2) the magnitude, frequency, and
circumstances of the harm to the child; (3) the results of psychiatric, psychological, or
developmental evaluations of the child, the child’s parents, other family members, or others who
have access to the child’s home; (4) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home; (5) the willingness and ability of the
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child’s family to seek, accept, and complete counseling services and cooperate with and facilitate
an appropriate agency’s close supervision; (6) the willingness and ability of the child’s family to
effect positive environmental and personal changes in a reasonable period of time; (7) whether
the child’s family demonstrates adequate parenting skills; and (8) whether an adequate social
support system consisting of an extended family and friends is available to the child. See id. §
263.307(b)(1), (3), (6), (8), (10), (11), (12), (13).
The evidence need not prove all statutory and Holley factors to show that termination of
parental rights is in a child’s best interest. See Holley, 544 S.W.2d at 372; In re J.I.T.P., 99
S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no pet.). In other words, the best
interest of the child does not require proof of any unique set of factors nor limit proof to any
specific factors. In re D.M., 58 S.W.3d 801, 815 (Tex. App.—Fort Worth 2001, no pet.).
Undisputed evidence of just one factor may be sufficient in a particular case to support a finding
that termination is in the child’s best interest. In re M.R.J.M., 280 S.W.3d 494, 507 (Tex.
App.—Fort Worth 2009, no pet.). But the presence of scant evidence relevant to each factor will
not support such a finding. Id. Evidence supporting termination of parental rights is also
probative in determining whether termination is in the best interest of the child. See In re C.H.,
89 S.W.3d at 28-29.
Analysis
The evidence at trial showed that T.S.S.C., M.M.H, and M.K.W. were seven, five, and
three years old, respectively, at the time of trial. Two years earlier, in August 2020, they were
removed from K.G.’s and W.W.’s home after K.G. and W.W. were found to be using
methamphetamine while the children were in the home. Service plans were created for the
parents. K.G. completed an inpatient drug rehabilitation program and obtained a job, housing,
and protective orders against W.W. and K.G.’s friend S.B., who had a history of marijuana use
and became “physical” when she and K.G. “got into it.”
In September 2021, the trial court granted K.G. a monitored return of the children. For
several months, the return went well except for some issues with the children missing school and
appointments. In February 2022, the court ordered the end of the monitored return after M.K.W.
tested positive for marijuana, K.G. allowed S.B. and W.W. to have contact with the children, and
K.G. provided false documentation of employment when she had not worked since December.
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Following the failed monitored return, K.G.’s efforts to reunite with her children were
minimal. Her service plan was revised to add more parenting classes, but she failed to attend
them. In March 2022, K.G. tested positive for methamphetamine and PCP. Her service plan was
then revised to add a substance abuse assessment and treatment. K.G. completed the assessment,
the results of which indicated she needed inpatient treatment. She went to the treatment center
but left without completing her course of treatment. K.G. testified that if she were drug tested,
she would test positive for methamphetamine because her last use was “yesterday.” K.G. worked
only four days during this period and was living with a friend at the time of trial.
In addition to K.G.’s ongoing substance abuse, Department and CASA representatives
were concerned about the ill effects on the children of K.G. being in their lives only sporadically.
In the seven months following the failed monitored return, K.G. had one phone call and one
virtual contact with T.S.S.C. A second virtual contact was scheduled, but K.G. failed to attend.
In July, during a sibling visit, K.G. spoke with the children on the phone. When the call ended,
M.M.H. cried and was distant from her siblings for the rest of the visit. For the rest of the
weekend, she wet herself and was unable to sleep. M.M.H.’s play therapist noticed regression in
her therapy after the call. Her play themes reverted to the abandonment and lack of safety themes
she exhibited in the beginning of her therapy. After this incident, the Department and CASA
decided that K.G. and M.M.H. should speak only in a counseling setting. K.G. maintained
regular contact with M.K.W. for a while, but for the last few weeks, she failed to call at the
appointed times.
Department conservatorship caseworker Dah-Mairi Scroggins testified that the children
were thriving in their placements. Their permanency goal was relative adoption. T.S.S.C. was
currently in a nonadoptive foster home, but the Department was working toward placing him
with a cousin in Kansas. T.S.S.C. and the cousin were in phone communication and had a great
bond and relationship. M.M.H. was placed with her sister. CASA representative Patrina Mitchell
testified that the sisters have a bond and M.M.H. was doing very well in the placement. M.K.W.
was in the same placement since the case began, and his foster parents maintained contact with
him while he was with K.G. on the monitored return. M.K.W. was very comfortable in the
placement. He called his foster parents “Granny” and “Papa,” and they wanted to adopt him.
The older children wanted to see K.G. but did not say that they wanted to live with her.
Scroggins and Mitchell acknowledged that the children loved K.G., but they believed
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termination was in their best interest because of K.G.’s consistent substance abuse and the
children’s need for permanency and stability.
Reviewing the evidence under the appropriate standards, including the statutory and
Holley factors, we conclude that a reasonable trier of fact could have formed a firm belief or
conviction that termination of K.G.’s parental rights was in the children’s best interest. See TEX.
FAM. CODE ANN. § 161.001(b)(2). Accordingly, we overrule K.G.’s first issue.
CONSERVATORSHIP
In K.G.’s second issue, she argues that the trial court erred by appointing the Department
as sole managing conservator without appointing her as a possessory conservator.
Standard of Review and Applicable Law
“The best interest of the child shall always be the primary consideration of the court in
determining the issues of conservatorship and possession of and access to the child.” TEX. FAM.
CODE ANN. § 153.002 (West 2014). The trial court is given wide latitude in determining the best
interests of a minor child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). In contrast to
termination findings, conservatorship determinations are governed by a preponderance of the
evidence standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). The appointment of a
conservator is subject to review for abuse of discretion and may be reversed only if the decision
is arbitrary and unreasonable. Id. (citing Gillespie, 644 S.W.2d at 451).
The Texas Family Code creates a rebuttable presumption that a parent will be named a
child’s managing conservator, unless the court finds that such appointment would not be in the
child’s best interest “because the appointment would significantly impair the child’s physical
health or emotional development” or finds that there is a history of family violence involving the
parents. TEX. FAM. CODE ANN. § 153.131(a) (West 2014). However, the term “parent” does not
include a parent as to whom the parent-child relationship has been terminated. Id. § 101.024.
Section 161.207 provides: “If the court terminates the parent-child relationship with respect to
both parents or to the only living parent, the court shall appoint a suitable, competent adult, the
Department of Protective and Regulatory Services, a licensed child-placing agency, or an
authorized agency as a managing conservator of the child.” Id. § 161.207(a) (West 2022).
In cases where a trial court’s termination of the parent-child relationship is reversed, a
parent is required to independently challenge a trial court’s conservatorship finding under
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Section 153.131(a) to obtain reversal of the conservatorship appointment. See In re J.A.J., 243
S.W.3d at 616-17; In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied). In this case, however, we overruled K.G.’s challenge to the termination finding. We
have reviewed the evidence supporting the court’s termination findings and found the evidence
to be legally and factually sufficient. Based upon the evidence recited above, we conclude the
trial court did not abuse its discretion in appointing the Department as sole managing conservator
of the children and not appointing K.G. as a possessory conservator. See In re G.C., No. 01-12-
00935-CV, 2013 WL 816440, at *10 (Tex. App.—Houston [1st Dist.] Mar. 5, 2013, pet. denied)
(mem. op.) (finding no abuse of discretion in conservatorship finding where the evidence was
sufficient to support termination of parental rights).
Nonetheless, K.G. argues that the trial court’s failure to name her as a possessory
conservator while allowing N.H. to maintain his parental rights shows the court’s decision was
arbitrary. K.G. specifically notes the evidence that N.H. was serving a twelve-year prison
sentence for delivery of a controlled substance, the lack of evidence of a relationship between
N.H. and M.M.H., and the evidence that M.M.H. and K.G. have a significant bond. We disagree
that this evidence renders the court’s decision not to name K.G. as a possessory conservator
arbitrary. N.H. testified that he was in prison when the case began and was not offered any
services by the Department. He was denied parole twice but hoped to make parole soon. N.H.
was in agreement with M.M.H.’s placement with his older daughter. Upon his release, N.H.
planned to comply with all the Department’s requests. He understood that he must put forth a
great amount of effort before he could have unsupervised access to M.M.H. Under these
circumstances, we cannot conclude that the court’s conservatorship findings were arbitrary. For
the foregoing reasons, we overrule Appellant’s second issue.
DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.
GREG NEELEY
Justice
Opinion delivered April 20, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 20, 2023
NO. 12-23-00002-CV
IN THE INTEREST OF T.S.S.C.,
M.M.H. AND M.K.W., CHILDREN
Appeal from the County Court at Law No. 2
of Angelina County, Texas (Tr.Ct.No. CV-00453-20-08)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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