in the Interest of J.B., AKA J.J.B v. Texas Department of Family and Protective Services ( 2022 )

Affirmed and Memorandum Opinion filed January 6, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00463-CV
IN THE INTEREST OF J.B., A/K/A J.J.B.
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2020-00057J
MEMORANDUM OPINION
The trial court terminated the Mother’s parental rights with respect to one of
her four sons. The trial court also found that the best interest of the Child would be
served by appointing the Foster Parents as managing conservators. Now on appeal,
the Mother does not challenge any of the predicate grounds for termination.
However, the Mother argues that the evidence is legally and factually insufficient to
support the trial court’s best-interest findings as to both the termination of her
parental rights and the appointment of the Foster Parents as managing conservators.
For the reasons given below, we overrule the Mother’s arguments and affirm the
trial court’s judgment.
BACKGROUND
The Mother has a long history of abusing cocaine. She tested positive for
cocaine when her first son was born in 2013, and then again in 2015 when she gave
birth to her second son. The Department removed the first son and placed him with
his maternal grandmother. The Department removed the second son and placed him
with the Foster Parents. In 2016, after the Mother’s parental right were terminated
with respect to the second son, the Foster Parents adopted the second son.
The Child in this case is the Mother’s third son. At the time of his birth in
2019, the Mother did not test positive for cocaine. However, the Mother used cocaine
after the Child’s birth and during the early stages of her pregnancy with her fourth
son, who was born in 2020. Concerning the third son, the Department removed the
Child and placed him with a family who fostered him for several months. The
Department then placed the Child with a new family headed by the same Foster
Parents who had adopted the Child’s older brother. The Department also removed
the fourth son and placed him with a separate foster family.
The Department filed the instant case, and in its original petition, the
Department sought to terminate the Mother’s parental rights with respect to the
Child, but not with respect to any of her other sons. The Department subsequently
abandoned its request for termination because the Department believed that the
Mother had successfully completed her court-ordered service plan and was no longer
abusing drugs. In an amended petition, the Department sought family reunification
as its primary goal. The Foster Parents filed a petition in intervention, seeking
termination of the Mother’s parental rights and adoption of the Child.
A bench trial was held in five nonconsecutive days over a span of three
months. At its conclusion, the trial court terminated the Mother’s parental rights
based on the following three predicate grounds: (1) she engaged in conduct or
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knowingly placed the Child with persons who engaged in conduct which endangered
the Child’s physical or emotional well-being, see Tex. Fam. Code
§ 161.001(b)(1)(E); (2) she had her parental rights terminated with respect to another
child because of conduct in violation of certain statutory criteria, see Tex. Fam. Code
§ 161.001(b)(1)(M); and (3) she failed to comply with the provisions of her court-
ordered service plan, see Tex. Fam. Code § 161.001(b)(1)(O). The trial court further
found that the best interest of the Child was served by terminating the Mother’s
parental rights and by appointing the Foster Parents as managing conservators.
The Mother now appeals from this judgment.1
TERMINATION
To terminate the parent-child relationship, the trial court must make two
findings. See In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). First, the trial court must
find that a predicate ground for termination has been satisfied, which typically
requires proof by clear and convincing evidence that the parent has either committed
a prohibited act or has failed to perform a required act. See Tex. Fam. Code
§ 161.001(b)(1). If the trial court finds such a predicate ground for termination, the
trial court must then find by clear and convincing evidence that termination is in the
child’s best interest. See Tex. Fam. Code § 161.001(b)(2).
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After the Mother filed her appellant’s brief and after the Foster Parents filed their
appellees’ brief, the Department filed its own brief requesting that we reverse the trial court’s
judgment. But because the Department did not file a notice of appeal or join in the Mother’s notice
of appeal, it did not properly invoke this court’s jurisdiction. See Tex. R. App. P. 25.1(c) (“A party
who seeks to alter the trial court’s judgment or other appealable order must file a notice of
appeal.”); In re C.A.B., 289 S.W.3d 874, 880 n.7 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(noting that the Department’s complaint of error was not properly preserved because the
Department did not file a statement of points and a notice of appeal). Nevertheless, we note that
the arguments in the Department’s brief align completely with the arguments in the Mother’s brief.
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The trial court here found three predicate grounds for termination. One of
those grounds was that the Mother has had her parental rights terminated with respect
to another child (i.e., her second son). See Tex. Fam. Code § 161.001(b)(1)(M). The
Mother concedes that there is sufficient evidence to support the trial court’s finding
under this predicate ground. The Mother suggests that there is no evidence to support
the trial court’s findings under the other two predicate grounds, but in light of her
concession regarding the previous termination of her parental rights, the Mother has
explicitly chosen not to contest these other predicate grounds. We need not consider
those predicate grounds either, because only one predicate ground is required to
support the trial court’s judgment. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)
(“Only one predicate finding under section 161.001(1) is necessary to support a
judgment of termination when there is also a finding that termination is in the child’s
best interest.”); see also In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam)
(providing that a review of other certain predicate grounds is required, even if a
separate ground is sufficient for termination, but only “when a parent has presented
the issue on appeal”).
The issue presented here is whether the evidence is legally and factually
sufficient to support the trial court’s other finding that termination is in the Child’s
best interest. This finding must be supported by clear and convincing evidence,
which is greater than the simple preponderance standard that applies more
commonly in civil cases. See Tex. Fam. Code § 161.001(b)(2). Under the standard
for clear and convincing evidence, the measure or degree of proof must produce in
the mind of the trier of fact a firm belief or conviction that the allegation sought to
be established is true. See Tex. Fam. Code § 101.007. This heightened burden of
proof results in a “correspondingly searching standard of appellate review.” See In
re A.C., 560 S.W.3d 624, 630 (Tex. 2018).
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When reviewing the legal sufficiency of the evidence in a parental termination
case, we consider all of 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 its finding was true. See In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002). We assume that the factfinder resolved disputed facts in favor of its finding
if a reasonable factfinder could have done so, and we disregard all evidence that a
reasonable factfinder could have disbelieved. Id. This standard does not mean that
we disregard all evidence that does not support the finding. Id. When deciding
whether the finding is supported by clear and convincing evidence, we must also
consider undisputed evidence contrary to the finding. Id.In a factual-sufficiency review, we give due consideration to both the disputed
evidence contrary to the finding as well as all of the evidence favoring the finding.
Id. The evidence is factually insufficient 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. Id.There is a strong presumption that the best interest of a child is served by
keeping the child with a parent. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)
(per curiam). The party requesting termination bears the heavy burden of rebutting
that presumption. See In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th
Dist.] 2012, no pet.).
No specific set of facts is required to establish that termination is in the best
interest of a child, but there are several nonexclusive factors that may guide the
factfinder’s best-interest determination. See In re L.M., 572 S.W.3d 823, 837 (Tex.
App.—Houston [14th Dist.] 2019, no pet.). These factors include (1) the desires of
the child; (2) the child’s emotional and physical needs; (3) the emotional and
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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 those persons
seeking custody in promoting the best interest of the child; (6) the plans for the child
by the individuals or agency seeking custody; (7) the stability of the home or
proposed placement; (8) any acts or omissions of the parent that may indicate the
existing parent-child relationship is not appropriate; and (9) any excuse for the
parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976); In re E.R.W., 528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017,
no pet.); see also Tex. Fam. Code § 263.307(b) (listing factors to consider in
evaluating a parent’s willingness and ability to provide the child with a safe
environment).
The Child’s Desires. Applying these factors to the evidence produced at trial,
we begin by observing that the Child was just under two years old when the trial
court rendered its judgment, and because of his tender age, there was no direct
evidence of the Child’s desires.
When there is no direct evidence of a child’s desires, the factfinder may
consider the child’s relationship with his natural family and whether the child has
bonded with his foster family. See In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied). In this case, the Mother testified that her
home visits with the Child were “going great.” Some of these home visits were
attended by the Child’s oldest brother (i.e., the Mother’s first son), who was in the
permanent care of his maternal grandmother. The Department’s supervisor testified
that the Child and his oldest brother “played very well together,” that the Child
“warmed up to [his grandmother] pretty quickly,” and that the Child appeared
“comfortable” with the Mother. The supervisor also added that she had no concerns
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with allowing the Child to return to the Mother, provided that the Mother abstained
from drugs.
The supervisor transported the Child to daycare after some of the home visits,
and she testified that she did not observe anything that would indicate that the Child
had been traumatized by the Mother. Contravening that testimony, the Foster Mother
said that the Child has exhibited unusual behavior after his home visits with the
Mother. According to the Foster Mother, the Child was “starving” after his first
home visit. And since the visits have started, the Child has not slept very well. He
has also become “very clingy” with the Foster Parents and “more demanding of
[their] attention.”
The Foster Mother also testified that the Child should remain with her own
family because the Child had formed a “very, very close” bond with his older brother
(i.e., the Mother’s second son), whom the Foster Mother had already adopted. The
Foster Mother described the two brothers as being “inseparable.” She said that the
older brother takes the Child by the hand and protects him. “They read books
together. They play superheroes together. They play trucks.” According to the Foster
Mother, the Child “idolizes” his older brother. The trial court could have reasonably
determined from this testimony that the Child’s attachment to his older brother
weighed in favor of termination.
The Child’s Needs and Stability of the Home. There was no indication that
the Child had any special needs, and the evidence established that the Foster Parents
were fully meeting his basic needs. In a permanency report filed with the trial court
just a few days before the trial began, the Department represented that the Foster
Parents “are appropriate and capable of providing [the Child] with a safe, secure,
protective, nurturing environment which meets [the Child’s] medical, dental,
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developmental, educational, emotional and mental needs. All of his social,
emotional, medical, dental and psychological needs are being met.”
The Mother testified that she was also able to provide for the Child’s needs.
She said that she had acquired bedding, clothing, and other essential items for the
Child. She had found a pediatrician and applied for Medicaid. And, at the beginning
of the trial, she also indicated that she had stable housing, where she could both be
a stay-at-home mom and also work by providing dispatching services for her
boyfriend, who was a long-haul truck driver. But this picture of stability changed
over the course of the trial.
The Mother said at the beginning of the trial that her name was on the lease
of the apartment that she jointly shared with her boyfriend, but she also testified that
the boyfriend was the source of her housing, as well as her income. When the Child
was born, this boyfriend had signed an acknowledgement of paternity, but a DNA
test subsequently excluded him as the Child’s biological father.2 Just a few weeks
before the end of the trial, the boyfriend had removed himself from the apartment,
apparently at the Mother’s request because he was abusing cocaine. He is now living
in Georgia.
Despite his moving out, the boyfriend paid the entirety of the last month’s rent
on the apartment, and the Department’s supervisor testified that she had no assurance
that the boyfriend will continue to pay the rent in the future. The Mother also
indicated that she still depended on the boyfriend for a portion of her income, even
though they were no longer living together. The Mother also indicated that she had
accepted a job as a server at a restaurant, but she had only been working there for
2
The trial court still declared that the boyfriend was the Child’s father and terminated the
boyfriend’s parental rights. The boyfriend has not appealed that judgment.
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less than one month and had yet to receive any income yet (although income was
expected).
Based on this evidence, the trial court had a reason for doubting the stability
of the Mother’s housing and income.
Danger to the Child. The evidence established that the Mother has struggled
for many years with an addiction to cocaine, both before and after the Child was
born. The Mother acknowledged that the Child was removed from her home because
her addiction endangered the Child’s safety. Her initial hair follicle tests also
registered levels of cocaine that were so high that they could not be accurately
quantified.
However, subsequent hair follicle tests revealed that these cocaine levels
gradually decreased over time, which was consistent with an abstention from drugs.
The latest hair follicle samples tested negative for cocaine, indicating that the Mother
had in fact quit using cocaine.
In addition to this drug testing evidence, there was evidence that the Mother
had completed a ninety-day outpatient program and a twelve-week aftercare
program. She was also actively attending Narcotics Anonymous meetings.
But there was also evidence that the Mother was not entirely forthcoming with
her recovery team. The Mother told her therapist that she had three children, instead
of four. The Mother also neglected to mention to her substance abuse counselor that
her boyfriend had an addiction to cocaine.
Parental Abilities of Those Seeking Custody. The Foster Parents established
that they have parented five children, three of whom are presently adults. They have
also taken a parenting class to become certified as foster parents.
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The Mother has taken a parenting class as well, including an anger
management class, but none of her four children is presently living with her, and she
has not parented any of her children for any significant length of time. The Mother
also advised her counselor that she had a family support system, but this system
included her boyfriend (who abuses cocaine and is no longer living with her), her
mother (who did not testify during the trial), and her brother (who testified that he
recently moved to the state of Washington).
Programs and Plans. A child advocate testified that she had concerns about
the Mother’s sobriety, which is why the Department was not prepared to
immediately return the Child to the Mother’s care. The Department’s supervisor
testified that she intended to implement a “stairstep” transition plan, which would
begin with supervised visits and then progress to unsupervised visits of varying
lengths. There was no specific testimony about programs available to assist the
Mother in the event she were reunified with the Child.
The Foster Mother testified that she wanted to adopt the Child. She added that
she intended to raise the Child to ensure that “he’s getting a good education, that
he’s going to church, [and] that he’s surrounded by people who love him and want
the best for him.”
Parent’s Acts of Omissions. A permanency report documented that the
Mother failed to appear at several conferences, child visits, and random drug tests.
Many of these “no shows” predated the birth of the Mother’s fourth son. Since that
birth, the Department generally remarked that the Mother appeared as required and
completed her court-ordered service plan.
Altogether, the evidence established that the Mother has commendably
obtained sobriety, but the evidence also provided the trial court with a substantial
basis for doubting whether the Mother’s housing and income were stable and
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whether the Mother remained independent of her drug-addicted boyfriend. The
evidence likewise provided the trial court with a substantial basis for believing that
the Child should remain with the Foster Parents, who had already adopted the
Child’s older brother, between whom there was a strong bond. Viewing the evidence
in the light most favorable to the judgment for our legal-sufficiency analysis, and
viewing all of the evidence equally for our factual-sufficiency analysis, we conclude
that a reasonable factfinder could have formed a firm belief or conviction that
termination of the Mother’s parental rights was in the Child’s best interest.
CONSERVATORSHIP
“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 Family and Protective Services, or a licensed child-placing
agency as managing conservator of the child.” Tex. Fam. Code § 161.207(a).
Upon the trial court’s termination of the Mother’s parental rights, the trial
court appointed the Foster Parents as the Child’s managing conservators. The
Mother now challenges whether the evidence is legally and factually sufficient to
support that decision.
Unlike a finding to terminate parental rights, which requires proof by clear
and convincing evidence, the quantum of evidence required to appoint a nonparent
as a conservator is a mere preponderance of the evidence. See In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007). The different standards of proof affect the standards
of review. Id. Conservatorship decisions are reviewed only for an abuse of
discretion. Id.Under the standard for abuse of discretion, legal and factual sufficiency of the
evidence are not independent grounds of error, but rather are relevant factors in
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assessing whether the trial court abused is discretion. See In re A.H.A., No. 14-12-
00022-CV, 2012 WL 1474414, at *11 (Tex. App.—Houston [14th Dist.] Apr. 26,
2012, no pet.) (mem. op.). There is no abuse of discretion as long as some evidence
of substantive and probative value exists to support the trial court’s decision. Id.There is abundant evidence to support the trial court’s appointment of the
Foster Parents as managing conservators. The Foster Mother testified that her family
began fostering the Child shortly after the Child’s first birthday. By the end of the
trial, the Foster Parents had been caring for the Child continuously for more than
eight months. And, as discussed above in our termination analysis, there was
evidence that the Child had bonded with his older brother, whom the Foster Parents
had adopted, and that the Foster Parents were meeting all of the Child’s basic needs
and providing him with a stable and nurturing home. Having found that there was
sufficient evidence to support the best-interest finding as to the termination of the
Mother’s parental rights, we likewise conclude that the trial court had sufficient
evidence upon which to exercise its discretion in appointing the Foster Parents as
managing conservators. See In re L.G.R., 498 S.W.3d 195, 207 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied) (finding no abuse of discretion in
conservatorship finding where the evidence was sufficient to support termination of
parental rights).
CONCLUSION
The trial court’s judgment is affirmed.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
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