In the Interest of E.G., a Child v. the State of Texas ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00197-CV
IN THE INTEREST OF E.G., A CHILD
On Appeal from the County Court at Law No. 1
Randall County, Texas
Trial Court No. 81181L1, Honorable Jack M. Graham, Associate Judge Presiding
August 10, 2023
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.
In this accelerated appeal, Appellant, Father, appeals the judgment of the trial
court terminating his parental rights to E.G.1 Appellee is the Texas Department of Family
and Protective Services. By a sole issue, Father contends the evidence is insufficient to
support the trial court’s finding that termination of his parental rights is in the best interest
of E.G. We affirm the judgment of the trial court.
1 To protect the privacy of the parties involved, we refer to the appellant as “Father” and the child
by his initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b).
BACKGROUND
Three-year-old E.G. is the subject of this suit. The associate judge conducted a
bench trial on the Department’s petition requesting termination of parental rights on April
24, 2023, and the following evidence was presented.
In March of 2022, the Department filed its petition to modify prior order, for
protection, conservatorship, and termination of parental rights of Mother2 and Father as
to their two-year-old son, E.G. E.G. was removed from Father’s possession after the
Department received a report that Mother and Father were smoking methamphetamine
in a motel room where Father and E.G. were living. There were also concerns of recent
domestic violence. During the investigation, Mother confirmed the use of
methamphetamine with Father and disclosed that E.G. was present when Father kicked
her in the face with his boot. According to Mother, she had been in a relationship with
Father for four years and he was physically violent with her three or four times a year. As
a part of the investigation, the Department requested that Father submit to a hair follicle
drug test, but he declined. A hair follicle drug test indicated that E.G. was positive for high
levels of methamphetamine. The Department was granted temporary managing
conservatorship of E.G. and he was placed in a foster home.
The Department developed a family service plan for Father and the court ordered
compliance with the plan requirements at a status hearing held in May of 2022. The
service plan set out several tasks and services for Father to complete before reunification
with E.G. could occur. Specifically, the Department’s service plan required Father to
2 Mother’s parental rights were also terminated in this proceeding. Mother does not appeal.
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complete domestic violence classes, attend individual therapy, engage in a substance
abuse program, submit to random drug testing, and maintain stable employment and
housing. Except for submitting to two drug screens, Father did not participate in the
services offered by the Department. Beginning in December of 2022 and continuing
through the trial date in April of 2023, Father was incarcerated on a child endangerment
charge related to E.G.
The court heard evidence that Father was convicted of the following offenses:
possession of a prohibited weapon—knuckles (October 24, 2018); possession of a
dangerous drug, burglary of a vehicle, evading arrest or detention (April 3, 2019); credit
card or debit card abuse (November 21, 2019); and evading arrest or detention (January
6, 2023). On October 27, 2022, Father pleaded guilty to felony child endangerment “by
causing a specimen of [E.G.’s] hair to indicate the presence of methamphetamine” and
was sentenced to six months in T.D.C.J. and a $1,500 fine.
At the time of trial, Father was incarcerated in T.D.C.J. with an expected release
date of May 26, 2023. Before the Department’s involvement, Father had primary custody
of E.G. He often allowed Mother to visit with E.G. and would leave the child in her care.
Father blamed Mother for E.G. testing positive for methamphetamine. According to
Father, Mother told him she had been getting high and other people reported that to him
as well. Father admitted that he relapsed and began using methamphetamine the night
E.G. was removed from his care. He continued abusing methamphetamine until he was
incarcerated on December 5, 2022. The last contact Father had with E.G. was in
September of 2022.
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Father completed an anger management course during his incarceration, but that
was not a requirement of his service plan. He asked to enroll in services at the T.D.C.J.
facility, but he was not allowed to because he was “not going to be [there] long enough.”
He testified he is going to “hit the ground running, as soon as [he] is released” and
complete his services. Instead of termination, he is asking the court to appoint him as a
possessory conservator of E.G.
The caseworker recommended termination of Father’s parental rights because of
Father’s ongoing struggle with substance abuse and his inability to provide E.G. with a
stable and safe home environment.
E.G. was placed with a maternal aunt and uncle. He is “doing great” and
“developing well.” E.G. understands directions, can play by himself, and has an excellent
vocabulary. His placement is addressing all his needs, including medical, dental, and
psychological. E.G. has demonstrated “a huge turnaround” from when he first entered
care. The caseworker testified that E.G. is happy, healthy, and bonded to his aunt and
uncle. E.G.’s aunt and uncle have been renovating their home in order to become
licensed as a foster home so that they can adopt E.G. if parental rights are terminated.
The trial court terminated Father’s parental rights to E.G. on the grounds of
endangering conditions, endangerment, constructive abandonment, and failure to comply
with a court order that established actions necessary to obtain return of the child. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O).3 The trial court also found that
3 Further references to provisions of the Texas Family Code will be by reference to “section ___”
or “§ ___.”
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termination was in the best interest of E.G. See § 161.001(b)(2). The Department was
appointed the permanent managing conservator of E.G.
Father timely appealed the resulting judgment.
STANDARD OF REVIEW
When reviewing the legal sufficiency of the evidence in a termination case, the
appellate court should look at all the evidence in the light most favorable to the trial court’s
finding “to determine whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). To
give appropriate deference to the factfinder’s conclusions, we must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do
so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or
found to have been not credible, but we do not disregard undisputed facts. Id. Even
evidence that does more than raise surmise or suspicion is not sufficient unless that
evidence can produce a firm belief or conviction that the allegation is true. In re K.M.L.,
443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we
determine that no reasonable factfinder could have formed a firm belief or conviction that
the matter that must be proven was true, then the evidence is legally insufficient and we
must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, we must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96
S.W.3d at 266. We must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.
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Id. We must also consider whether disputed evidence is such that a reasonable factfinder
could not have resolved the disputed evidence in favor of its finding. Id. If, considering
the entire record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction, then the evidence is factually insufficient. Id.
APPLICABLE LAW
A parent’s right to the “companionship, care, custody, and management” of his or
her child is a constitutional interest “far more precious than any property right.” Santosky
v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of the
parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural
parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to
accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)
(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may
forfeit his or her parental rights by his or her acts or omissions, the primary focus of a
termination suit is protection of the child’s best interests. See id.In a case to terminate parental rights under section 161.001 of the Family Code,
the petitioner must establish, by clear and convincing evidence, that (1) the parent
committed one or more of the enumerated acts or omissions justifying termination, and
(2) termination is in the best interest of the child. § 161.001(b). Clear and convincing
evidence is “the measure or degree of proof that will produce in the mind of the trier of
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fact a firm belief or conviction as to the truth of the allegations sought to be established.”
§ 101.007; In re J.F.C., 96 S.W.3d at 264. Both elements must be established and
termination may not be based solely on the best interest of the child as determined by the
trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re
K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied). “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 A.V., 113 S.W.3d at 362. We will affirm the termination order if the evidence is both
legally and factually sufficient to support any alleged statutory ground the trial court relied
upon in terminating the parental rights if the evidence also establishes that termination is
in the child’s best interest. In re K.C.B., 280 S.W.3d at 894–95.
The clear and convincing evidence standard does not mean the evidence must
negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,
902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall
that the trier of fact has the authority to weigh the evidence, draw reasonable inferences
therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the
right to resolve credibility issues and conflicts within the evidence and may freely choose
to believe all, part, or none of the testimony espoused by any witness. Id. Where
conflicting evidence is present, the factfinder’s determination on such matters is generally
regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no
writ).
The appellate court cannot weigh witness credibility issues that depend on
demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d
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570, 573 (Tex. 2005) (per curiam). Even when credibility issues are reflected in the written
transcript, the appellate court must defer to the factfinder’s determinations, if those
determinations are not themselves unreasonable. Id.ANALYSIS
Best Interest
Father does not challenge any of the statutory predicate grounds for termination
under section 161.001(b)(1). Rather, by a single issue, Father challenges the factual and
legal sufficiency of the evidence to support the best interest finding made under section
161.001(b)(2).
A determination of best interest necessitates a focus on the child, not the parent.
In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts
examine the entire record to decide what is in the best interest of the child. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child’s
best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006).
In assessing whether termination is in a child’s best interest, the courts are guided
by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976).4 “[T]he State need not prove all of the factors as a condition precedent to parental
4 These factors include: (1) the child’s desires; (2) the child’s present and future emotional and
physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities
of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to
promote the child’s best interest; (6) the plans for the child by the individuals or agency seeking custody;
(7) the stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate
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termination, ‘particularly if the evidence were undisputed that the parental relationship
endangered the safety of the child.’” In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied) (quoting In re C.H., 89 S.W.3d 17, 27 (Tex. 2002)).
Evidence that supports one or more statutory grounds for termination may also constitute
evidence illustrating that termination is in the child’s best interest. See In re E.C.R., 402
S.W.3d at 249. The best interest analysis may consider circumstantial evidence,
subjective factors, and the totality of the evidence as well as direct evidence. In re N.R.T.,
338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). We must also bear in mind
that a child’s need for permanence through the establishment of a stable, permanent
home has been recognized as the paramount consideration in determining best interest.
See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).
The record reflects that when the Department became involved, Father and E.G.
were living in a motel and E.G. was exposed to his parents’ drug use and domestic
violence. Shortly after he was removed from his Father’s care, E.G. tested positive for
high levels of methamphetamine. Father tested positive for methamphetamine while the
case was pending and he refused to engage in services directly related to the reasons for
E.G.’s removal, such as a substance abuse assessment or drug treatment program. He
used methamphetamine throughout the case until he was incarcerated in December of
2022 for child endangerment charges. Moreover, Father admitted to leaving E.G. in
Mother’s care despite knowing she was using illicit drugs. Father’s course of conduct as
an active drug user demonstrates that he is “not willing and able to provide the child with
that the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or omissions.
Id.9
a safe environment—a primary consideration in determining the child’s best interest.” In
re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.); see also In
re E.R.W., 528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“A
parent’s drug use supports a finding that termination is in the best interest of the child.”).
A trial court is permitted to consider a parent’s drug use, inability to provide a stable home,
and failure to comply with a family plan of service in its best interest determination. In re
S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.). A parent’s abuse
of illegal drugs is relevant to multiple Holley factors, including a child’s emotional and
physical needs, the emotional and physical danger to the child, a parent’s parental
abilities, stability of the home, and a parent’s acts or omissions pertinent to determining
whether the parent-child relationship is improper. See Holley, 544 S.W.2d at 371–72.
The evidence before the trial court concerning Father’s substance use was significant
and, thus, weighs heavily in favor of the trial court’s best-interest finding.
The court also heard evidence from which it found that Father failed to complete
court-ordered services. Although numerous programs were available for Father to help
him improve his parental skills, he did not avail himself of them prior to his arrest and the
services were not available to him in prison. A parent’s failure to complete court-ordered
services when his parent-child relationship is in jeopardy creates a reasonable inference
that the parent is incapable of availing himself of programs that promote the best interest
of the child, both now and in the future. The factfinder can infer from a parent’s failure to
take the initiative to utilize the available programs that the parent does not have the ability
to motivate himself in the future. In re S.P., 509 S.W.3d 552, 558 (Tex. App.—El Paso
2016, no pet.). A trial court is permitted to consider a parent’s failure to comply with a
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family plan of service in its best-interest determination. In re S.B., 207 S.W.3d at 887–
88. This evidence weighs heavily in favor of the best-interest finding.
Stability and permanence are paramount in the upbringing of children. In re J.D.,
436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may
compare the parent’s and the Department’s plans for the child and determine whether the
plans and expectations of each party are realistic or weak and ill-defined. Id. at 119–20.
At the time of removal, Father did not have the resources or ability to care for E.G. and
there was no evidence offered at trial suggesting that Father’s circumstances had
improved. The testimony indicates that Father interacted appropriately with E.G. during
visits, but he has not visited E.G. since September of 2022. The Department presented
evidence of Father’s criminal history, and he was incarcerated at the time of the final
hearing. He asked to be appointed a possessory conservator and wanted an opportunity
to finish his service plan. Conversely, E.G.’s aunt and uncle have been providing a drug-
free environment, and the stability, structure, security, and consistency that E.G. needs.
The evidence shows that E.G. is strongly bonded with his aunt and uncle and has made
tremendous progress since his placement with them. E.G. is doing well and his aunt and
uncle plan to adopt him. At the time of trial, E.G. was only three years old and, thus, too
young to testify about his desires. When children are too young to express their desires,
the factfinder may consider whether the children have bonded with the foster family, are
well cared for by them, and have spent minimal time with a parent. In re S.R., 452 S.W.3d
351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Further, the Department’s
plan for E.G.’s adoption provides permanence and stability for E.G. and weighs heavily in
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favor of the trial court’s conclusion that termination of Father’s parental rights is in the best
interest of E.G.
We conclude the evidence is legally and factually sufficient to establish a firm
conviction in the mind of the trial court that termination of Father’s parental rights is in the
best interest of E.G. We overrule Father’s issue challenging the best-interest
determination.
CONCLUSION
Having overruled the sole issue raised by Father’s appeal, we affirm the judgment
of the trial court terminating Father’s parental rights.
Judy C. Parker
Justice
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