in the Interest of G.A.B. ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00062-CV
________________
IN THE INTEREST OF G.A.B.
________________________________________________________________________
On Appeal from the 88th District Court
Hardin County, Texas
Trial Cause No. 62066
________________________________________________________________________
MEMORANDUM OPINION
Father appealed from an order terminating his parental rights to his daughter,
Gabrielle.1 In his appeal, Father argues that the evidence presented to the trial court
was legally and factually insufficient to support the trial court’s findings terminating
his parental relationship with Gabrielle, including the trial court’s best interest
finding.2 Based on our review of the record and Father’s arguments, we conclude
1
We use a pseudonym for the name of the minor and her family members to
protect the minor’s identity. Tex. R. App. P. 9.8(b)(2) (allowing courts to protect the
identities of minors in parental-rights termination cases).
2
The trial court terminated Father’s rights on three predicate grounds,
including condition endangerment and conduct endangerment. See Tex. Fam. Code
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that the record contains sufficient evidence to support the trial court’s findings as to
endangerment and the child’s best interest; for these reasons, we will affirm.
I. Background
A. Pre-Removal Investigation and Initiation of Suit
In January of 2021, when Gabrielle was one year old, the Department of
Family and Protective Services (“the Department”) received a report alleging
neglectful supervision, medical neglect, and possible sexual abuse. Pursuant to that
report, Department investigators visited the home that Mother and Father shared.
Although they soon ruled out allegations of sexual abuse, they noted that Mother’s
behavior was “irrational and bizarre[,]” and that Father often contradicted himself
while speaking with the investigators. Because of the way that the parents presented
themselves during the interview and based upon their history of criminal convictions
for possession of a controlled substance and intoxicated behavior, when both Mother
and Father tested positive for methamphetamines, the Department sought removal
and possession of the child. The removal affidavit included information that Father
Ann. § 161.001(b)(1)(D) and (E). The trial court further found that Father had
constructively abandoned Gabrielle when she had been in the permanent or
temporary managing conservatorship of the Department of Family and Protective
Services for not less than six months, and the Department had made reasonable
efforts to return Gabrielle to Father, Father had not regularly visited or maintained
significant contact with Gabrielle, and Father had demonstrated an inability to
provide Gabrielle with a safe environment. See Tex. Fam. Code Ann. §
161.001(b)(1)(N). The trial court also terminated the parental rights of Gabrielle’s
mother, but the mother is not a party to this appeal.
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was on parole for possession of a controlled substance, and that Mother was on
probation for a similar offense.
B. Evidence at Trial
1. Linda Jones’ Testimony
Linda Jones, the Department caseworker in this matter, testified that as of the
date of her testimony, Gabrielle was doing well in her foster home, and her health
had improved. She further noted that it was in Gabrielle’s best interest to remain in
her foster care setting, as no appropriate relative was available to assume her care.
Jones testified that Mother had not regularly visited Gabrielle, and that Father
had been incarcerated during the time that Jones had been assigned to this case.
2. Carla Hadnot’s Testimony
Carla Hadnot, the Department supervisor on this case, echoed Jones’
testimony that Gabrielle was doing well in her foster care placement and opined that
she should remain there.
Because Gabrielle has a congenital heart condition, the Department placed her
in a primary medical needs home. Hadnot elaborated on the situation and indicated
that Gabrielle was receiving appropriate therapy and medication, and that her
medical status had improved significantly since she came into care.
Hadnot noted that neither parent had complied with their service plan. With
specific reference to Father, Hadnot stated that although he had been incarcerated
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since April of 2021, roughly a month after his service plan was incorporated into a
court order, it was not unfair to seek to terminate Father’s parental rights on the basis
of noncompliance with the service plan because Father failed to initiate any services
between the date of the child’s removal and the date he was incarcerated. She
acknowledged that it was impossible for Father to have complied with the service
plan while he was in jail but contended he could have begun to comply with it, even
though funding for some of the plan’s requirements had not then been approved. She
also recalled that two of Father’s eight drug tests were positive.
Hadnot testified that Mother had missed several of her scheduled visits with
Gabrielle and had not complied with her plan of service. Moreover, five of Mother’s
ten drug tests yielded positive results.
3. Foster Mother’s Testimony
R.S., Gabrielle’s foster mother, testified that Gabrielle was placed in her home
in February of 2021, and has been doing very well since that time. Due to Gabrielle’s
delicate medical condition, she requires an extensive regimen of medication and
therapy; she also sees a cardiologist, has had two heart surgeries, and will need a
third surgery when she is a bit older.
Being a registered nurse, R.S. was able to not only understand Gabrielle’s
condition, but to appreciate its severity and the concomitant necessity to ensure that
Gabrielle receive appropriate and consistent medical treatment. She repeated the
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cardiologist’s opinion that Gabrielle’s dramatic improvement was due to her
receiving her medication on a regular basis following her removal from Mother’s
and Father’s care.
4. Father’s Testimony
Father participated remotely from the Hardin County jail, where he was then
incarcerated on a domestic violence charge, for which he pleaded guilty for having
assaulted Mother, to whom he has been married since Gabrielle was approximately
three months old. Father acknowledged that he was aware of his plan of service, and
that he failed to comply with it due to his incarceration but stated that he wanted the
opportunity to complete those services, because he loves Gabrielle and wants to be
there for her. Once he is released from jail, he hopes to obtain housing and a job, so
that he can again be a father to her. After Father was charged with assaulting Mother,
a warrant was issued for his arrest for violation of his parole. He has been
incarcerated since April 29, 2021. The next time he “came into contact” with Orange
County law enforcement, he was arrested on the blue warrant. At the time of trial,
Father was still waiting to hear the parole board’s decision either to allow his
conditional release again or to revoke his parole and continue to keep him
incarcerated on his previous felony convictions for possession of controlled
substances.
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Father testified that he had remained sober during the pendency of the case
but conceded that he and Mother used ecstasy on New Year’s Eve while Gabrielle
was in their care, and he said that “slip-up” caused a positive drug test. Father was
aware of Gabrielle’s medical needs and stated that while they lived in the same
residence, he and Mother “took very good care of” Gabrielle and ensured that she
adhered to her medication schedule. He promised that despite his previous parenting
mistakes, he would be a good father if permitted to do so.
5. Mother’s Testimony
Like Father, Mother confirmed knowledge of her plan of service. She stated
that despite the difficulties caused by her illness, she has tried to comply with her
service plan and has evidence of compliance with some of the tasks in the plan; the
record of the trial does not, however, include this documentation. She indicated that
she never missed a required drug test, and a positive drug test was a false positive.
She testified that after Gabrielle was removed, she lost her place to live and has been
living with various friends off and on. She also lost her car. She has been
unemployed since the beginning of Covid. She had been drawing unemployment
benefits but those had terminated by the time of trial. She planned to use her income
tax refund of $4600 to obtain suitable housing and transportation and planned to
return to work at a local restaurant in order to properly care for Gabrielle. In the
effort to care for her daughter, Mother testified that she not only took her daughter
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to doctors’ appointments and gave her medication as needed but also, she says she
has trained at home to become a “cardiological nurse,” and she says she is now
qualified to provide that level of care to a heart patient, including Gabrielle. That
said, Mother said she had not attended any schools for her training. She begged the
trial court not to terminate her rights and testified that she had addressed her mental
health issues, to be a better mother to Gabrielle.
6. Bonnie Hollier’s Testimony
Because of concerns of Mother’s possible mental incapacity, the trial court
appointed Hollier as Mother’s guardian ad litem. Based on her limited contact with
Mother, Hollier doubted Mother’s understanding of the seriousness of the pending
case, although Mother did appear to have an understanding of the requirements of
her plan of service.
II. Standard of Review
The decision to terminate parental rights must be supported by clear and
convincing evidence. Tex. Fam. Code Ann. § 161.001(b). Under the Family Code,
“‘[c]lear 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.” Id. § 101.007; In re J.L., 163 S.W.3d 79,
84 (Tex. 2005). The movant must show that the parent committed one or more
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predicate acts or omissions and that termination is in the child’s best interest. See
Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re J.L., 163 S.W.3d at 84.
In reviewing the legal sufficiency of the evidence in a parental rights
termination case, we must consider all the evidence in the light most favorable to the
finding to determine whether a reasonable factfinder could have formed a firm belief
or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344-45 (Tex.
2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so, and we disregard all evidence that a reasonable factfinder could have
disbelieved. Id. In a factual sufficiency review, we “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 State’s allegations.’” Id. (quoting In re C.H., 89 S.W.3d 17, 25
(Tex. 2002)). “If, in light of 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.8
III. Analysis
A. Statutory Grounds D and E
In his first two issues, Father challenges the sufficiency of the evidence to
support termination of his parental rights under sections 161.001(b)(1)(D) and (E)
of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(D) and (E).
As to these subsections, Father relies on the apparent lack of direct evidence that
either his conduct or Gabrielle’s living environment endangered Gabrielle in any
way and relies on In re L.C.L. to support his argument that the Department must
prove such a causal nexus when seeking a parental rights termination. 599 S.W.3d
79, 84-85 (Tex. App.—Houston [14th Dist.] 2020, pet denied).
In his fourth point of error, Father contends that the evidence was legally and
factually insufficient to support the trial court’s finding that it was in Gabrielle’s best
interest to terminate his parental rights; Father attacks the conclusory nature of the
testimony at trial, noting that conclusory statements do not constitute evidence and
implying that the conclusory testimony of the caseworkers therefore could not
support the trial court’s termination order.
We are required to consider the sufficiency of the evidence pursuant to
Sections 161.001(b)(1)(D) or (E) if challenged. See In re N.G., 577 S.W.3d 230,
235-36 (Tex. 2019). If the evidence is sufficient as to one of these, it will not be
necessary to address the other predicate grounds because sufficient evidence as to
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only one ground in addition to the best interest finding is all that is necessary to
affirm a termination judgment. See id. at 232-33. Because the evidence of statutory
grounds D and E is often interrelated, we may consolidate our review of the evidence
supporting these grounds. See In re J.L.V., No. 09-19-00316-CV, 2020 WL
1161098, at *10 (Tex. App.—Beaumont Mar. 11, 2020, pet. denied) (mem. op.).
Endangerment arises when a parent’s conduct jeopardizes the child’s emotional or
physical health or exposes a child to loss or injury. See In re S.R., 452 S.W.3d 351,
360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Under subsection D, parental rights may be terminated if clear and convincing
evidence supports the conclusion that the parent “knowingly placed or knowingly
allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child[.]” Tex. Fam. Code Ann. §
161.001(b)(1)(D). Subsection E allows for termination of parental rights if clear and
convincing evidence supports the conclusion that the parent “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[.]” Id. § 161.001(b)(1)(E).
“Conduct” includes the parent’s failure to act. See In re T.A., No. 12-20-00276-CV,
2021 WL 2182316, at *4 (Tex. App.—Tyler May 28, 2021, pet. denied) (mem. op.).
Under subsection D, parental rights may be terminated based on a single act
or omission by the parent. In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.—Texarkana
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2015, no pet.) (citing In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003,
pet. denied)). Under that subsection, we examine the time before the child’s removal
to determine whether the environment of the home posed a danger to the child’s
physical or emotional well-being. Id. at 925 (citing In re L.C., 145 S.W.3d 790, 795
(Tex. App.—Texarkana 2004, no pet.)). “A finding of endangerment under
subsection E, however, may be based on conduct both before and after removal.” In
re A.L.H., 515 S.W.3d 60, 93 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)
(citing In re S.R., 452 S.W.3d at 360). “‘[E]ndanger’ means to expose to loss or
injury[.]’” In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.)
(quoting Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).
Under subsection E, it is sufficient that the child’s well-being is jeopardized or
exposed to loss or injury. Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 367.
“‘A child is endangered when the environment creates a potential for danger that the
parent is aware of, but disregards.’” In re L.E.S., 471 S.W.3d at 925 (quoting In re
N.B., No. 06-12-00007- CV, 2012 WL 1605457, at *9 (Tex. App.—Texarkana May
8, 2012, no pet.) (mem. op.)). Generally, subjecting a child to a life of uncertainty
and instability endangers the child’s physical and emotional well-being. See In re
R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).
In addition, a pattern of drug abuse will support a finding of conduct
endangering a child even if there is no evidence that such drug use caused a physical
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or actual injury to the child. Vasquez v. Tex. Dep’t of Protective & Regulatory Servs.,
190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). A history
of illegal drug use is conduct that subjects a child to a life that is uncertain and
unstable, endangering the child’s physical and emotional well-being. See In re S.D.,
980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied); Dupree v. Tex.
Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 85-86 (Tex. App.—Dallas
1995, no writ). A parent’s drug use, criminal history, and employment and housing
instability prior to and during the case create a course of conduct from which the
factfinder could determine the parent endangered the child’s emotional and physical
well-being. See In re M.C., No. 09-18-00436-CV, 2019 WL 1561824, at *6 (Tex.
App.—Beaumont Apr. 11, 2019, no pet.) (mem. op.); see also In re S.R., 452 S.W.3d
at 361-62 (parent’s drug use may qualify as a voluntary, deliberate, and conscious
course of conduct endangering the child’s well-being); Walker v. Tex. Dep’t of
Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.]
2009, pet. denied) (illegal drug use may support termination under subsection E
because “it exposes the child to the possibility that the parent may be impaired or
imprisoned[ ]”).
The trial court, sitting without a jury, heard evidence of Father’s drug use,
criminal history, unemployment, and housing instability, both before removal and
during the pendency of the case. Much of this evidence came from Father, himself,
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in that he testified that he used ecstasy, an illegal drug, while Gabrielle was in his
care, that he had been convicted of two felony drug offenses, that he pleaded guilty
to family violence toward Mother during the pendency of this case, and that he had
neither a job nor a home to go to upon his release from jail. Father was incarcerated
prior to the child’s birth and afterwards and remained incarcerated at the time of
trial, awaiting the parole board’s decision to revoke his conditional release. Even his
parents refused to assist him with a suitable place to live until after he could show
them a steady course of employment, creating a reasonable inference that Father has
had previous problems maintaining steady employment. The record supports a
finding that Gabrielle was endangered by the uncertainty and instability caused by
Father. See In re M.C., 2019 WL 1561824, at *5-6. Although Father testified he had
reformed, relatively recent improvements in his lifestyle do not necessarily negate
his criminal history, drug use, lack of steady employment, and violent behavior
toward Mother. See In re J.F.-G., 627 S.W.3d 304, 316-17 (Tex. 2021). His promise
that he would, if given the chance, care for Gabrielle after his release from
incarceration, while undoubtedly well intentioned, likewise provides no assurance
of Gabrielle’s future well-being, and the trial court therefore need not have
determined that his good intentions weighed in Father’s favor, especially given the
evidence tending to show that based on Father’s past behavior Gabrielle had been
neglected and endangered while in Father’s care. See In re A.M., 385 S.W.3d 74, 83
13
(Tex. App.—Waco 2012, pet. denied) (stating that a trier of fact may reject a parent’s
promises of future stability).
Although both Father and Mother testified that they took excellent care of
Gabrielle, the evidence indicates otherwise. The evidence reveals that Gabrielle
made significant medical strides after being removed and placed with her foster
family. The cardiologist opined that Gabrielle’s impressive improvement after
removal from Mother and Father was at least partially due to receiving her
medication on a regular basis. This evidence supports an inference that Gabrielle
was not correctly medicated while in Mother’s and Father’s care. Failure to
administer medication or medical care to a child with a heart defect qualifies as
endangerment. See In re J.I.G., No. 01-18-00023-CV, 2018 WL 3233874, at *8
(Tex. App.—Houston [1st Dist.] July 3, 2018, no pet.) (mem. op.) (stating that
failure to provide appropriate medical care constitutes endangering conduct for
purposes of subsection E).
Father’s contention that the evidence is insufficient to show endangerment
because of the alleged lack of evidence causally connecting his bad conduct toward
the child misstates the law; endangering conduct need not be directed at the child in
question, nor need the child sustain any injury, for the evidence to warrant the
conclusion that the child has been endangered, as that term is used in the context of
a parental rights termination. In re J.F.-G., 627 S.W.3d at 312 (citing Boyd, 727
14
S.W.2d at 533). The specific danger to the child’s well-being may be inferred from
parental misconduct standing alone. Boyd, 727 S.W.2d at 533. Father’s reliance on
In re L.C.L. likely is misplaced, because even though the Texas Supreme Court
denied the petition for review, Justice Lehrmann’s concurring opinion implies that
if presented with a “proper case,” the court probably would decide that no causal
nexus between the drug use and the alleged endangerment would be necessary to
find clear and convincing evidence of endangerment. 599 S.W.3d at 84; 629 S.W.3d
909, 911 (Tex. 2021). Even if we were to assume, which we do not, that the law
requires a cause-and-effect relationship between the allegedly endangering conduct
and harm to the child, the evidence that Father failed to ensure that Gabrielle was
properly medicated and allowed Gabrielle to remain in an environment of illegal
drug abuse by himself, Mother, and others, and as a result of this neglect, the harm
she suffered constituted the evidence of endangerment that Father contends is absent
from the record. See In re J.I.G., 2018 WL 3233874, at *8.
We have carefully reviewed the entire record, and after examining the
evidence we hold that a reasonable trier of fact could have formed a firm belief or
conviction that Father engaged in conduct whereby Gabrielle’s physical or
emotional well-being was endangered by the parents’ conduct and by her living
conditions while in their care. Accordingly, we overrule Father’s first and second
issues.
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B. Best Interest Finding
In his last issue, Father challenges the legal and factual sufficiency of the
evidence to support the trial court’s determination that terminating his parental rights
was in Gabrielle’s best interest. Father has attacked the best interest finding on the
ground that the only evidence of Gabrielle’s best interest consisted of a conclusory
statement, which amounts to no more than a scintilla of evidence. See In re L.C.L.,
599 S.W.3d at 85. While it is a correct statement of the law that conclusory
statements are not evidence, Hadnot’s conclusory testimony that it was in Gabrielle’s
best interest to remain with her foster family does not end the inquiry. As the
reviewing court, the question we must decide is whether the record, when considered
as a whole, supports the trial court’s best interest finding. See In re C.H., 89 S.W.3d
at 28. To make this determination, we consider the non-exclusive factors identified
by the Texas Supreme Court in Holley v. Adams, to the extent that they apply to the
case before us. 544 S.W.2d 367, 371-72 (Tex. 1976).3
3
These factors are as follows:
1. the child’s desires;
2. the child’s current and future physical and emotional needs;
3. the current and future physical and emotional danger to the child;
4. the parenting abilities of the parties seeking custody;
5. the programs available to assist the party seeking custody;
6. the plans for the child by the parties seeking custody;
7. the stability of the home or proposed placement;
8. the parent’s acts or omissions that reveal that the existing parent-child
relationship is improper; and
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There need not be evidence of all, or even most, of the Holley factors; instead,
strong evidence of one factor, particularly a factor involving the child’s safety, may
be adequate to justify the trial court’s decision that the child’s best interest is served
by terminating the parent-child relationship. See In re C.H., 89 S.W.3d at 27-28.
Applying this standard to the instant case indicates that the trial court was justified
in forming the requisite firm conviction that termination was in Gabrielle’s best
interest, for Hadnot’s brief statement about Gabrielle’s best interest was far from the
only evidence that her best interest would be best served by terminating Father’s
parental relationship. As shown above, the record contained evidence that not only
was Gabrielle’s physical safety endangered by Father’s neglect of his daughter’s
medical needs, the parenting abilities of Gabrielle’s foster mother, as illustrated by
Gabrielle’s remarkable improvement after she was removed from Mother’s care and
placed with her foster mother weigh heavily in favor of termination. Given the
gravity of Gabrielle’s medical state, it clearly was in her best interest that both
Father’s and Mother’s parental rights be terminated, so that Gabrielle could be
adopted by the foster family that had demonstrated the ability to care for her
properly.
9. any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
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Neither Mother nor Father had a realistic plan for providing a stable home for
Gabrielle. During the pendency of the suit, despite the gravity of the situation,
Mother had been living with various friends, had not been employed, and had no
transportation at time of trial. Mother’s plan was dependent upon receiving an IRS
refund to, at most temporarily, obtain a place to live and some form of transportation.
Father’s plan was wholly contingent upon him being released from incarceration. In
that case, he planned to be housed in a halfway house and “hoped” to go to work for
a previous employer; only after proving a consistent history of stable employment,
he would rely upon his elderly parents to provide him with suitable housing. On the
other hand, the foster parent wished to adopt Gabrielle, and maintained a stable home
life and employment, where Gabrielle was reportedly happy and loved. This factor
weighs heavily in favor of termination of Father’s parental rights.
As Father has correctly noted in support of his position, there is a strong
presumption that keeping a child with a parent is in the child’s best interest. Tex.
Fam. Code Ann. § 153.131(b); see also In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)
(noting that a “strong presumption” exists favoring keeping a child with his or her
parent). Even so, it is also presumed “the prompt and permanent placement of the
child in a safe environment is . . . in the child’s best interest.” Tex. Fam. Code Ann.
§ 263.307(a). To reconcile these seemingly contradictory principles, the trial court
is afforded “wide latitude in determining the best interests of a minor child.”
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Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (citing Leithold v. Plass,
413 S.W.2d 698 (Tex. 1967)). The trial court exercised this latitude in favor of
termination, and we decline to disturb it absent any indication to show that that
decision was erroneous or reached improperly. Considering the Holley factors, and
considering all the evidence, we find that the trial court could have reasonably
formed a firm belief or conviction that termination of Father’s parental rights was in
the best interest of Gabrielle. We overrule Father’s final issue.
Having found the evidence supports the trial court’s findings made pursuant
to Tex. Fam. Code Ann. § 161.001(b)(1)(D) and (E), and the trial court’s best-
interest finding, we need not address Father’s additional contention that the evidence
was insufficient to support the finding that he had constructively abandoned his
child. See Tex. Fam. Code Ann. § 161.001(b)(1)(N); Tex. R. App. P. 47.1.
We affirm the trial court’s order of termination in trial court cause number
62066.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on August 15, 2022
Opinion Delivered August 18, 2022
Before Kreger, Horton and Johnson, JJ.
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