In the Interest of C.K.T., a Child v. the State of Texas ( 2024 )

IN THE
TENTH COURT OF APPEALS
No. 10-23-00288-CV
IN THE INTEREST OF C.K.T., A CHILD
From the County Court at Law
Navarro County, Texas
Trial Court No. C22-30420-CV
MEMORANDUM OPINION
The mother of C.K.T. appeals from a judgment that terminated her parental rights
to her child. The mother complains that the evidence was legally and factually
insufficient for the jury to have found that she constructively abandoned C.K.T., failed to
complete her service plan, failed to complete drug treatment, or that termination was in
the best interest of the child. 1 See TEX. FAM. CODE § 161.001(b)(1)(N), (O), (P); (b)(2).
Because we find that the evidence was legally and factually sufficient for the jury to have
found that she constructively abandoned C.K.T. and that termination was in the best
1 The jury answered "No" to endangering surroundings and conduct pursuant to subsections
161.001(b)(1)(D) and (E). See TEX. FAM. CODE § 161.001(b)(1)(D), (E).
interest of the child, we affirm the judgment of the trial court. 2
STANDARD OF REVIEW
The standards of review for legal and factual sufficiency in cases involving the
termination of parental rights are well established and will not be repeated here. See In
re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25
(Tex. 2002) (factual sufficiency); see also In re J.O.A., 283 S.W.3d 336, 344-45 Tex. 2009).
CONSTRUCTIVE ABANDONMENT
The mother complains that the evidence was legally and factually insufficient for
the jury to have found that she intended to constructively abandon C.K.T. Section
161.001(b)(1)(N) states that a parent's rights may be terminated if it is found (in addition
to the best interest finding) that the parent has:
Constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the Department of Family and
Protective Services for not less than six months, and:
(i) the department has made reasonable efforts to return the child to the
parent;
(ii) the parent has not regularly visited or maintained significant contact
with the child; and
(iii) the parent has demonstrated an inability to provide the child with a
safe environment.
2
The department did not file an appellee's brief in this proceeding. When the appellee fails to file an
appellate brief, we nevertheless review the merits of the appellate issues to determine whether reversal of
the trial court's ruling is warranted. Yeater v. H-Town Towing LLC, 605 S.W.3d 729, 731 (Tex. App.—Houston
[1st Dist.] 2020, no pet.). The appellee's failure to respond to appellant's brief does not automatically entitle
appellant to a reversal. Sullivan v. Booker, 877 S.W.2d 370, 373 (Tex. App.—Houston [1st Dist.] 1994, writ
denied).
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TEX. FAM. CODE §161.001(b)(1)(N). In the single paragraph devoted to this ground in her
brief, the mother argues that the evidence was legally and factually insufficient for the
jury to have found that she intended to constructively abandon C.K.T. The mother has
cited to no authority, and we have found none in support of her position. The mother
argues that due to some testimony regarding mental health and cognitive issues of the
mother, there was insufficient evidence for the jury to have found that she could have
formed the requisite intent to constructively abandon her child.
Certain subsections of Section 161.001(b)(1) include scienter as part of the
necessary finding in order to establish that predicate act for purposes of terminating a
parent's rights, such as "knowingly placed the child in surroundings" in subsection D or
"knowingly placed the child with persons" in subsection E as examples. See TEX. FAM.
CODE § 161.001(b)(1)(D), (E). Arguably even the subsections which require a finding of
voluntariness would require some element of scienter, such as "voluntarily left the child
alone or in the possession of another not the parent" in subsections A, B, and C as
examples. See TEX. FAM. CODE § 161.001(b)(1)(A), (B), (C). We have previously found that
scienter is not required for a finding that a parent "engaged in conduct" which
endangered a child pursuant to subsection E. See In the Int. of L.S., No. 10-22-00119-CV,
2022 Tex. App. LEXIS 6332 at *4, 2022 WL 3655395 (Tex. App.—Waco Aug. 24, 2022, no
pet.) (mem. op.). Likewise, we do not find a requirement of scienter in subsection N.
Even if some evidence as to the mother's intent to abandon her child was
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necessary, there was evidence from multiple witnesses that mother understood that she
needed to complete her services and needed to participate in drug testing but failed to
engage in any of her required services to any substantial degree throughout the
proceedings. The testimony showed that the mother knew what was required of her in
order for C.K.T. to be returned to her.
The mother attended only 18 of her allowed weekly visits with C.K.T. and had
missed 44 at the time of the trial. A few of the visits were missed due to lack of
transportation, but most were missed with no explanation given by the mother. The
mother had not seen C.K.T. for 10 months prior to the trial. At one point, the mother
informed the guardian ad litem of C.K.T. that she was in Dallas working on her rap career
and could not visit with C.K.T.
The trial court had even extended the court's jurisdiction to give the mother
additional time to engage in services, but she did not. The evidence was legally and
factually sufficient for the jury to have found that the mother constructively abandoned
C.K.T. We overrule issue one.
BEST INTEREST
In her second issue, the mother complains that the evidence was legally and
factually insufficient for the jury to have found that termination was in the best interest
of the child. In determining the best interest of a child, a number of factors have been
consistently considered which were set out in the Texas Supreme Court's opinion, Holley
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v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is not exhaustive, but simply lists
factors that have been or could be pertinent in the best interest determination. Id. There
is no requirement that all of these factors must be proved as a condition precedent to
parental termination, and the absence of evidence about some factors does not preclude
a factfinder from reasonably forming a strong conviction that termination is in the child's
best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
The department initially received a referral that C.K.T. had been injured in an
altercation with mother and another person in the home. Upon investigation, the
department determined that an altercation had occurred but that C.K.T. was not injured
as described in the referral. C.K.T. was 2 years old at the time of the removal. The mother
agreed to a safety plan whereby she would be supervised at all times with C.K.T. by
several of her relatives. The mother was not complying with the safety plan and was
uncooperative with the investigator. She also admitted to the regular use of cocaine and
marijuana. The safety plan became unworkable after a second referral and C.K.T. was
ultimately removed and this proceeding commenced. In a hair test, the mother tested
positive for cocaine and marijuana. At the time of the removal, C.K.T. did not have any
obvious signs of physical abuse; however, he was determined to be significantly speech
delayed which necessitated speech therapy. He was otherwise happy and appeared
healthy and clean.
Fairly soon after the removal, C.K.T. was placed with his paternal great-
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grandmother, where he remained until the trial. The great-grandmother was hoping to
adopt C.K.T. She and C.K.T. were bonded to each other and C.K.T. was improving
substantially in her home. He had completed speech therapy and started occupational
therapy at the time of the trial.
The mother initiated services pursuant to the service plan and completed a drug
assessment and psychological assessment. After drug treatment was recommended, the
mother attended only 2 sessions and was unsuccessfully discharged. The mother also
failed to attend counseling, did not have a stable home or job that she informed the
department about, and failed to take most of the drug tests she was required to take. She
admitted to the use of cocaine, marijuana, and alcohol about five months after the
removal prior to a visit with C.K.T. The caseworker eventually drove her to a drug test
approximately 2 months before the trial, which was negative in a urine test, but unable
to test due to insufficient hair.
Because the mother's admission of regular illegal drug use was a significant factor
in the department's continued involvement prior to the removal of C.K.T., it was
reasonable for the jury to determine that the mother's failure to address her drug use and
failure to stop using illegal drugs established that the mother lacked the motivation
necessary to seek out programs available to assist her in promoting C.K.T.'s wellbeing.
See In re A.B., No. 07-19-00180-CV, 2019 Tex. App. LEXIS 9110, 2019 WL 5199299, at *6
(Tex. App.—Amarillo Oct. 15, 2019, no pet.) (mem. op.) (parent's failure to complete
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services directly related to reason for child's removal, including substance-abuse
assessment, supported finding that termination was in child's best interest because it gave
rise to inference that parent did not have ability to motivate himself to seek out resources
available to promote child's wellbeing).
Further, a parent's failure to regularly visit her child after removal may support a
finding that termination of the parent's rights is in the child's best interest. See In re T.R.H.,
No. 01-16-00450-CV, 2016 Tex. App. LEXIS 12475, 2016 WL 6873061, at *8 (Tex. App.—
Houston [1st Dist.] Nov. 22, 2016, pet. denied) (mem. op.). This is because the failure to
regularly visit one's child, especially a young child, signals that the parent-child
relationship is not an appropriate one and that the parent is unwilling or unable to meet
her child's emotional and physical needs. See In re A.J.D.-J., 667 S.W.3d 813, 824 (Tex.
App.—Houston [1st Dist.] 2023, no pet.) ("Parental absence or lack of involvement is
especially telling with respect to the best interest of very young children, like babies and
toddlers, due to their inherent vulnerability and particular need for parental attention
and nurturing."). As stated above, the mother attended only 18 out of 62 allowed visits
with C.K.T. and had not seen him for 10 months at the time of the trial.
Finally, the mother did not attend the jury trial. When a parent fails to attend
termination proceedings without a valid explanation, "the factfinder may reasonably
infer that the parent is indifferent to the outcome." In re A.J.D.-J., 667 S.W.3d at 826. A
parent's failure to attend the final hearing may support a finding that termination is in
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the child's best interest. See id.
Viewing the evidence under the appropriate standards for legal and factual
sufficiency of the evidence, we find that the evidence was legally and factually sufficient
for the jury to have found that termination was in the best interest of C.K.T. We overrule
issue two.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed February 29, 2024
[CV06]
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