A. B. v. Texas Department of Family and Protective Services ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00054-CV
A. B., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 433RD DISTRICT COURT OF COMAL COUNTY
NO. C2022-0467D, THE HONORABLE MELISSA MCCLENAHAN, JUDGE PRESIDING
MEMORANDUM OPINION
A.B. (Mother) appeals the final judgment, rendered after a bench trial, terminating
her parental rights to T.A.B. (Child).1 In a sole appellate issue, she challenges the legal and factual
sufficiency of the evidence to support the finding that terminating her rights was in Child’s best
interest. See Tex. Fam. Code § 161.001(b)(2). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Child was five years old at the time of trial in November and December 2022 and
by then had been living continuously with Mother’s parents (Grandparents) for about eight months.
Grandparents’ home also included Child’s older sister (Older Sister), whom Grandparents adopted
1
The same judgment terminated Child’s father’s parental rights, but the father has not
appealed.
about eight years before trial after Mother relinquished her parental rights to Older Sister. Child
was 11 years old at the time of trial and saw Grandparents as her mother and father.
Mother has a long history of drug abuse and has been in and out of rehabilitation
programs several times. This suit began soon after Mother was arrested in March 2022 for
possession of narcotics when she was stopped while driving with Child in the car with her. In the
past, the Department had temporarily removed Child from Mother, including after Mother tested
positive for methamphetamine while pregnant with Child. After this arrest for possession, the
Department petitioned for termination of Mother’s parental rights to Child. The witnesses at the
bench trial were law-enforcement officers, Older Sister, Mother’s mother (Grandmother), and a
Department caseworker. The court admitted drug-test exhibits offered by the Department. Child’s
guardian ad litem and attorney ad litem both aligned with the Department in recommending
termination of Mother’s parental rights.
After trial, the court found by clear and convincing evidence that terminating
Mother’s parental rights was in Child’s best interest and that Mother had committed the two
endangerment statutory predicates for terminating parental rights, reciting in its order that Mother
had “knowingly placed or knowingly allowed the child to remain in conditions or surroundings
which endanger the physical or emotional well-being of the child” and had “engaged in conduct
or knowingly placed the child with persons who engaged in conduct which endangers the physical
or emotional well-being of the child.” See Tex. Fam. Code § 161.001(b)(1)(D), (E), (2). Mother
now appeals, challenging only the best-interest finding.
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APPLICABLE LAW AND STANDARD OF REVIEW
To terminate parental rights, the Department must prove at least one of the statutory
predicate grounds and, in addition, that termination is in the best interest of the child. See Tex.
Fam. Code § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The Department
must prove both elements by clear and convincing evidence. See Tex. Fam. Code §§ 161.001(b),
.206(a); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means
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 § 101.007;
accord In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).
Legal-sufficiency review of the evidence regarding termination requires reviewing
all the evidence in the light most favorable to the finding under attack and considering undisputed
contrary evidence to decide whether a reasonable factfinder could have formed a firm belief
or conviction that the finding was true. See In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018).
“Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding
against all the evidence favoring the finding.” Id. 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. When reviewing the evidence, we must “provide due
deference to the decisions of the factfinder, who, having full opportunity to observe witness
testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses.”
In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). We may not “effectively second-guess the trial
court’s resolution of a factual dispute by relying on evidence that is either disputed, or that the court
could easily have rejected as not credible.” See In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).
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While parental rights are of constitutional magnitude, they are not absolute. In re
C.H., 89 S.W.3d at 26; L.M. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00635-CV,
2022 WL 1694474, at *11 (Tex. App.—Austin May 27, 2022, no pet.) (mem. op.). “Just as it
is imperative for courts to recognize the constitutional underpinnings of the parent-child
relationship, 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; L.M., 2022 WL 1694474, at *11. “The
strong presumption that a child’s best interest is served by keeping the child with his or her
biological parents disappears when confronted with evidence to the contrary.” Aguilar v. Foy,
No. 03-10-00678-CV, 2012 WL 677497, at *8 (Tex. App.—Austin Mar. 1, 2012, no pet.)
(mem. op.); accord In re T.D.S., No. 13-15-00107-CV, 2015 WL 5110472, at *21 (Tex. App.—
Corpus Christi–Edinburg Aug. 28, 2015, no pet.) (mem. op.); B.B. v. Texas Dep’t of Fam. &
Protective Servs., 445 S.W.3d 832, 838 (Tex. App.—El Paso 2014, no pet.); In re C.M.C.,
No. 14-12-00186-CV, 2012 WL 3871359, at *5 (Tex. App.—Houston [14th Dist.] Aug. 30, 2012,
pet. denied) (mem. op.); In re A.I.G., 135 S.W.3d 687, 692 (Tex. App.—San Antonio 2003,
no pet.).
When reviewing best-interest findings, factors that courts consider include (1) the
child’s wishes, (2) the child’s emotional and physical needs now and in the future, (3) emotional
or physical danger to the child now and in the future, (4) the parenting abilities of the parties
seeking custody, (5) programs available to help those parties, (6) plans for the child by the parties
seeking custody, (7) the stability of the proposed placement, (8) the parent’s conduct that may
indicate that the existing parent-child relationship is improper, and (9) any excuses for the
parent’s conduct. In re J.W., 645 S.W.3d 726, 746 (Tex. 2022). This list of factors is not
exhaustive, not all of them need to be proven to determine a child’s best interest, and analysis of
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a single factor may be adequate in a particular factual context. See M.L. v. Texas Dep’t of Fam. &
Protective Servs., No. 03-22-00541-CV, 2023 WL 2025710, at *5 (Tex. App.—Austin Feb. 16,
2023, no pet.) (mem. op.); S.C. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00039-CV,
2020 WL 3892796, at *16 (Tex. App.—Austin July 10, 2020, no pet.) (mem. op.).
DISCUSSION
Mother’s sole appellate issue attacks the legal and factual sufficiency of the
evidence to support the trial court’s finding that terminating her parental rights to Child was in
Child’s best interest. See Tex. Fam. Code § 161.001(b)(2).
Under the first of the best-interest factors—Child’s wishes—children’s love for
their parents does not outweigh overwhelming evidence showing that the parent has engaged in
conduct, or placed the child in surroundings, that endangered the child. R.M. v. Texas Dep’t of
Fam. & Protective Servs., No. 03-21-00342-CV, 2021 WL 5456657, at *5 (Tex. App.—Austin
Nov. 18, 2021, no pet.) (mem. op.) (citing In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—
Texarkana 2003, no pet.)). “The child’s love of his parents cannot compensate for the lack of an
opportunity to grow up in a normal and safe way equipped to live a normal, productive, and
satisfying life.” In re W.S.M., 107 S.W.3d at 773.
While some testimony showed that Child loved Mother, wanted to return to her,
and was bonded with her when the current placement with Grandparents began, other testimony
showed that Child’s bond with Mother dwindled while Child’s bond with Grandparents grew into
a close attachment. And still other testimony showed that Child was happy, healthy, and thriving
in Grandparents’ home. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.]
2014, no pet.) (“When children are too young to express their desires, the fact finder may consider
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that the children have bonded with the foster family, are well cared for by them, and have
spent minimal time with a parent.”); accord J.C. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-22-00583-CV, 2023 WL 2169492, at *5 (Tex. App.—Austin Feb. 23, 2023, no pet.) (mem.
op.). The evidence under this first factor is thus mixed but, even at best for Mother, is outweighed
by the evidence of endangerment, see R.M., 2021 WL 5456657, at *5; W.S.M., 107 S.W.3d at 773,
to which we turn next.
We next address the second, third, fourth, seventh, and eighth best-interest factors.
The factfinder may infer from a parent’s past endangering conduct that much the same would
happen again if the child were returned. See D.T. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-18-00770-CV, 2019 WL 1526429, at *6 (Tex. App.—Austin Apr. 9, 2019, no pet.) (mem.
op.); In re J.D., 436 S.W.3d at 119. And the unchallenged findings here under the endangerment
predicates are binding in this appeal and thus can support the best-interest finding. M.V. v. Texas
Dep’t of Fam. & Protective Servs., No. 03-19-00066-CV, 2019 WL 2518733, at *2 (Tex. App.—
Austin June 19, 2019, pet. denied) (mem. op.); In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied). Child herself tested positive for methamphetamine when
she was about four-and-a-half years old, indicating she had been exposed to drugs while in
Mother’s care. 2 When her placement with Grandparents began in 2022, Child rarely wanted to
eat and was so small that Grandmother was concerned and gave her Pediasure for extra nutrition.
Child lacked an established routine and so had trouble with bedtime.
This evidence of Child’s experiences when she was in Mother’s care, paired with
extensive evidence of Mother’s long-term drug abuse, supports termination. See J.G. v. Texas
2
Father was then incarcerated.
6
Dep’t of Fam. & Protective Servs., No. 03-22-00790-CV, 2023 WL 3634364, at *8 (Tex. App.—
Austin May 25, 2023, no pet. h.) (mem. op.) (explaining that evidence of continued illegal drug
use by parent, “knowing her parental rights were in jeopardy, supports the conclusion that she is
not willing or able to provide the child with a safe environment—a primary consideration in
determining best interest”); S.S. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00695-CV,
2022 WL 2542007, at *8 (Tex. App.—Austin July 8, 2022, pet. denied) (mem. op.) (holding that
history of drug abuse is relevant in best-interest determination (citing In re C.A.J., 122 S.W.3d
888, 893 (Tex. App.—Fort Worth 2003, no pet.))). She began abusing marijuana and ecstasy as a
teenager. She overdosed twice while a teenager and from then into adulthood went through at
least five behavioral or drug-rehabilitation programs, plus years of counseling from sixth grade
onward. When Older Sister was one or two years old, Mother was abusing drugs again, resulting
in the Department’s becoming involved, and she voluntarily relinquished her parental rights to
Older Sister. Then when Mother was pregnant with Child, Grandmother learned from Mother’s
doctor that Mother tested positive for methamphetamine during the pregnancy, so the doctor asked
Grandmother to attend future medical appointments with Mother. Soon after Child was born,
Mother and Child lived with Grandparents, and Grandmother warned Mother that she would
report Mother to the Department if she caught her using drugs again. That is what happened—
Grandmother reported Mother after finding ten or more packages of methamphetamine in the home
and noticing contemporaneous changes in Mother’s behavior, including more anger, more secrecy,
and coming and going at odd hours. In fact, Grandmother testified that Mother often would take
Child out of the home late at night, when Child should have been sleeping. On another occasion,
Father appeared in front of Grandparents’ home at 2:00 a.m., Grandparents’ son called police, and
Father was found to have “a lot of drugs on him.” This provided an example of Grandmother’s
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testimony that the people Mother tends to spend time with abuse drugs, including those who would
be asked to babysit Child if she were returned to Mother’s care. As for Mother’s March 2022
arrest for possession of narcotics, Comal County law enforcement conducted a traffic stop of
Mother’s car while Child was a passenger. A search turned up a glass pipe in a backpack,
syringes, and a liquid substance in a sunglasses case. After the substance was field-tested, Mother
was arrested.
In response to her history of drug abuse, Mother was given a ‘family service plan”
by the Department that required her to submit to frequent, random drug-testing. When the
Department’s caseworker first met with Mother during the suit, the caseworker told her that missed
drug tests would be presumed to be positive drug tests. See D.T., 2019 WL 1526429, at *4 (stating
that missed drug tests can be presumed to be positive). The caseworker also told Mother not to
dye her hair, suggesting that doing so could interfere with hair-follicle drug-testing. Yet Mother
missed at least six drug tests in the three months just before trial and dyed her hair at least twice
while this suit was pending. In addition, Mother on at least five occasions during the suit tested
positive for opiates, methamphetamine, or both. Otherwise, on at least three occasions during the
suit, including in the weeks before trial, Mother produced negative drug tests.
Beyond the drug-abuse evidence, other evidence set up a contrast between
Grandparents’ provision for Child’s needs in their home and Mother’s comparative difficulty in
providing for Child’s needs. See Spurck v. Texas Dep’t of Fam. & Protective Servs., 396 S.W.3d
205, 223 (Tex. App.—Austin 2013, no pet.) (explaining that factfinder may weigh “the relative
parenting abilities of the parties seeking custody” when deciding best interest). The record
contains evidence that Child was doing very well in the placement with Grandparents, including
by bonding with them and with Older Sister, enjoying stability, and gaining confidence. She is
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growing healthier than when she first came into their care. Grandparents have both children in
counseling and play therapy. Child has told Grandparents that she loves them. She enjoys school.
She often sings and dances in their home, a home where she has her own room and a yard to
play in. Grandparents have her in dance classes.
Mother, by contrast, is living in a “sober-living home” on recommendation from
her recent inpatient-treatment provider.3 See In re A.A.B., Nos. 14-16-00855-CV, 14-16-00918-
CV, 2017 WL 1334622, at *9 (Tex. App.—Houston [14th Dist.] Apr. 11, 2017, pet. denied) (mem.
op.) (parent’s living in Transitional Living Center could be viewed as unstable for child and thus
as evidence that termination of parental rights is in child’s best interest). Testimony suggested that
there were no other children in that home but that there were several adults who, like Mother,
needed treatment for drug abuse. To determine what else Mother could provide for Child, the
Department caseworker asked Mother to supply proof of employment via pay stubs and proof of
child-support payments. Although she has work through a temp agency, Mother has never given
the caseworker proof of pay stubs or child-support payments, and she is in fact behind on child
support. Mother’s plan also required her to attend parenting classes that met a certain curriculum
requirement, but Mother took online classes that did not meet the requirement. She was also put
on a waiting list before completing plan-required classes on family-violence prevention because
she had missed some sessions.
Older Sister’s experiences shed light on Mother’s parenting ability. In her own
words, Older Sister feels safe with Grandparents and does not want Mother to take either her or
Child back, even though she cries when Mother leaves. Older Sister worries that Mother might
3
Mother has lived in such a facility before, but after leaving began abusing drugs again.
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not take good care of Child. While Older Sister lived with Mother, Mother would sneak out of the
home, which hurt the child’s feelings. Mother “never took care of” her. Older Sister even knew
that Mother took drugs out of sight, which upset the child. After being adopted by Grandparents,
Older Sister has not seen Mother very much, and when she does, she feels “[h]appy, mad.” She is
happy that Child now lives with them. Older Sister does not like Mother anymore.
Grandmother testified about Mother’s effects on Older Sister as well. Grandparents
have let Mother call Older Sister on the phone for years, but the calls have caused harm
because Mother breaks many of her promises to call again or to visit. Grandmother sees the
promise-breaking as emotionally abusive. Mother’s contact with Older Sister is only sporadic,
leaving the child with “a lot of anger issues” and “a lot of resentment.”
Other testimony favored Mother’s position under these best-interest factors.
Grandmother admitted that Mother managed to teach Child good behavior, but that was all that
Grandmother thought Mother had done well in parenting. Mother recently completed drug
rehabilitation, and Older Sister recently called Mother to thank her for a birthday gift. Mother
completed parts of her plan, including the “Outreach, Screening, Assessment and Referral”
evaluation, but the caseworker testified that Mother has not yet carried out all the evaluation’s
recommendations. Mother believes she can achieve sobriety and has passed several drug tests,
including some not long before trial. All that said, the state of the evidence—including the
extensive history of drug abuse, its continuing during this suit while Mother’s rights were at stake,
the unchallenged endangerment-predicate findings, and the deficiencies in Mother’s ability to
parent Older Sister and Child—makes these best-interest factors point overwhelmingly in favor of
terminating Mother’s parental rights.
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Under the fifth, sixth, and ninth best-interest factors, Grandmother testified that she
and her husband want to adopt Child, keeping her and her sibling in the same home together and
Child out of the foster-care system. See In re B.H.R., 535 S.W.3d 114, 124 (Tex. App.—Texarkana
2017, no pet.) (“A fact-finder may consider the consequences of its failure to terminate parental
rights and that the best interest of the child may be served by termination so that adoption may
occur rather than the impermanent foster care arrangement that would result if termination were
to not occur.”); accord D.O. v. Texas Dep’t of Hum. Servs., 851 S.W.2d 351, 358 (Tex. App.—
Austin 1993, no writ), disapproved of on other grounds, J.F.C., 96 S.W.3d at 267 n.39.
Grandmother thinks that returning Child to Mother would be “devastating” and that Child would
not be safe with her. Mother did not testify, and the record lacks any showing of Mother’s plans
for Child, except that she will keep working on sobriety and live in the sober-living home. See
In re K.C., No. 07-18-00282-CV, 2018 WL 6729944, at *5 (Tex. App.—Amarillo Dec. 21, 2018,
pet. denied) (mem. op.) (because parent “chose not to provide the court any information through
testimony,” court of appeals was “not informed of matters critical to the best-interest determination
such as [parent]’s rehabilitation or his plans for family and employment”). Other testimony helped
explain some of Mother’s personal difficulties—Grandmother testified that Mother was sexually
assaulted as a 15-year-old. But at best for Mother, the evidence under these final factors either is
mixed or weighs slightly in favor of termination.
Because of the overwhelming evidence of endangerment, including from the
history of drug abuse and parenting deficiencies, and evidence of Child’s significant progress
under Grandparents’ care, the evidence when viewed through the best-interest factors was legally
and factually sufficient to support the trial court’s best-interest finding. We overrule Mother’s sole
appellate issue.
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CONCLUSION
Having overruled Mother’s appellate issue, we affirm the trial court’s judgment.
__________________________________________
J. Woodfin Jones, Justice
Before Justices Baker, Smith, and Jones*
Affirmed
Filed: July 11, 2023
*
Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
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