In the Interest of A.C., a Child v. the State of Texas ( 2023 )

Opinion filed September 21, 2023
In The
Eleventh Court of Appeals
__________
No. 11-23-00056-CV
__________
IN THE INTEREST OF A.C., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 10469-CX
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of both the father and the mother of A.C. See TEX. FAM. CODE ANN. § 161.001
(West 2022). The mother filed a notice of appeal. We affirm.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. FAM. §§ 161.001(b), 161.206(a), (a-1). To terminate one’s parental rights
under Section 161.001, it must be shown by clear and convincing evidence that the
parent has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id. In this case, the trial court found
that the mother had committed two of the acts listed in Section 161.001(b)(1)—those
found in subsections (D) and (E). The trial court also found that termination of the
mother’s parental rights would be in the best interest of the child. See id.
§§ 161.001(b)(2), 161.003(a)(5). In two issues, the mother challenges the legal and
factual sufficiency of the evidence supporting these findings.
To determine if the evidence is legally sufficient in a parental termination
case, we review all of the evidence in the light most favorable to the finding and
determine whether a rational trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
To determine if the evidence is factually sufficient, we give due deference to the
finding and determine whether, on the entire record, a factfinder could reasonably
form a firm belief or conviction about the truth of the allegations against the parent.
In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We note that the factfinder is the sole
arbiter of the credibility and demeanor of witnesses and the weight to be afforded
their testimony. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (citing In re J.L., 163
S.W.3d 79, 86–87 (Tex. 2005)).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (1) the desires of the child, (2) the emotional and physical needs of the
child now and in the future, (3) the emotional and 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 these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
2
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.To support a best interest finding, the Department is not required to prove all of the
Holley factors; in some circumstances, evidence of the presence of only one factor
will suffice. In re D.M., 452 S.W.3d 462, 473 (Tex. App.—San Antonio 2014, no
pet.). Additionally, evidence that proves one or more statutory grounds for
termination may also constitute evidence illustrating that termination is in the child’s
best interest. C.J.O., 325 S.W.3d at 266.
The absence of evidence of some Holley considerations does not preclude the
factfinder from reasonably inferring or forming a strong conviction or belief that
termination is in the child’s best interest, particularly if the evidence indicates that
the parental relationship and the parent’s conduct has endangered the safety of the
child. C.H., 89 S.W.3d at 27. This is so because the best interest analysis evaluates
the best interest of the child, not the parent. In re E.C.R., 638 S.W.3d 755, 767 (Tex.
App.—Amarillo 2021, pet. denied) (citing In re B.C.S., 479 S.W.3d 918, 927 (Tex.
App.—El Paso 2015, no pet.)).
In this regard, the factfinder may measure a parent’s future conduct by her
past conduct and determine whether termination is in the child’s best interest. In re
E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied); In re D.S.,
333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011 [Panel Op.], no pet.). The
factfinder may infer that a parent’s past conduct that endangered the safety and well-
being of a child may recur in the future if the child is returned to the possession of
the parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014,
no pet.). Further, the factfinder may infer from a parent’s past inability to meet a
child’s physical and emotional needs an inability or unwillingness to meet the child’s
needs in the future. Id.; see also In re A.S., No. 11-16-00293-CV, 2017 WL
1275614, at *3 (Tex. App.—Eastland Mar. 31, 2017, no pet.) (mem. op.). The
3
factfinder may also consider a parent’s failure to comply with a court-ordered family
service plan for reunification with the child in making its best interest determination.
In re E.C.R., 402 S.W.3d 239, 249–50 (Tex. 2013); In re E.C.R., 638 S.W.3d at 769
(citing In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.)).
Procedural and Factual Background
The intake for the child in this case stemmed from a police interaction with
the mother. On the morning of July 24, 2021, Abilene Police Detective Sterling
Riddle received a call for a welfare check at a Greyhound bus stop in Abilene. The
bus stop is attached to a 7-Eleven and has some benches under a metal covering.
When Detective Riddle arrived, the mother and the child, A.C., were the only people
at the bus stop. The mother was standing in the area where the buses come in to
refuel with her hands on the ground—in a “four-point stance.” Her four-year-old
child, A.C., was running around in the covered area. Detective Sterling described
the area where the bus stop was located to be a “highly trafficked area” and a “high
call area” or “high crime area.”
Detective Riddle attempted to communicate with the mother, but she did not
acknowledge his presence. The mother was mumbling and yelling, but the detective
was unable to understand what exactly she was saying. Detective Riddle observed
that the mother was not wearing shoes, and that there were shoes and clothing items
spread out under the awning area. The mother’s Louisiana identification card was
in the property scattered around the bus stop and the child was able to give the
detective its name. An ambulance was called for the mother and child protective
services (CPS) was called for the child, A.C.
Department of Family and Protective Services (the Department) Investigator
Kelly Loza testified that she attempted to speak with the mother at the hospital, but
the mother spoke incoherently and her statements did not make sense. Loza later
learned that the mother had been removed from the hospital and taken to River Crest
4
due to a mental health breakdown. Loza testified that the mother had been prescribed
medication before traveling to Texas with A.C. but had chosen to stop taking that
medication, which endangered the well-being of A.C. The child was placed in foster
care while the mother was in the hospital.
Following her release from River Crest, the mother participated in an
evaluation with licensed psychologist Dr. Scott Brown on September 1, 2021. The
mother was diagnosed with “Bipolar Disorder 1” with a recent manic episode; post-
traumatic stress disorder; and borderline intellectual function; Dr. Brown also noted
that “she had a history of both physical and sexual abuse in her life.” The report of
Dr. Brown showed scores in the first percentile for math, fifth percentile for spelling,
and fourth percentile for reading, reflecting a “very low to extremely low” range of
academic skills. Dr. Brown’s report included recommendations for the mother to
ensure the safety of her son. One recommendation indicated that it was imperative
for the mother to “receive consistent and monitored treatment, including medication
consultation and counseling support.” Dr. Brown testified that if the mother failed
to take her prescribed medication consistently, it would increase the mother’s chance
of having another manic episode like the one which occurred on July 24, 2021.
The initial goal of the Department was reunification. That goal was changed
to adoption in June of 2022. A 2INgage caseworker testified that the mother
participated in counseling, a psychological evaluation, and visitation with A.C.
during the case. The caseworker also testified that she requested the mother attend
parenting classes, but that the service provider indicated that they were unable to get
in touch with the mother.
The mother testified that, in the past, she has stopped taking medication on
her own and has not always followed her doctor’s orders with respect to her
medication. The mother testified that, in the past, she has used heroin, marihuana,
and taken “street drugs, pills,” but that she had never used cocaine. Despite this
5
assertion, a hair follicle test was admitted into evidence which showed that the
mother tested positive for cocaine and oxycodone on October 20, 2022, just three
months prior to the termination hearing. The mother admitted to taking oxycodone.
She explained that she was not feeling well, so she went to a friend’s house for the
oxycodone; explaining “I don’t know if that [cocaine] was in it.” Despite this
admission, the mother later maintained she did not know how she tested positive for
cocaine.
Visitation between the mother and A.C. during the case included virtual visits,
supervised in-person visits, and one unsupervised in-person visit. A 2INgage
caseworker testified that the mother attended the majority of the visits but missed
some visits “based off of being at work or . . . [for] different reasons.” During the
virtual visits, A.C. was sometimes quiet, eating a snack during the visits and other
times, hyper, jumping and moving around. One of A.C.’s foster parents also testified
that A.C. had to leave the placement because the child would become angry, self-
harming, and destructive following visits—or missed visits—with the mother.
A.C.’s caseworker described to the trial court how A.C. “looks for rewards for
everything” and that the mother will give in to these requests and “doesn’t know
how to discipline appropriately.”
Additional evidence was presented about the mother’s interactions with A.C.
and her inability to parentally manage his behavior. The mother testified that part
of the reason why she was in Texas in the first place was because she was depressed
and “need[ed] to get away.” She indicated that her son, A.C., was aggravating her
and he did not want to listen to her. The mother also called the 2INgage supervisor
during her unsupervised in-person visit because A.C. was not listening to her. The
supervisor testified that the mother’s response was to put “a pillow or blanket over
her head” to try to block him—or his noise—out. The supervisor said the mother
6
did not ask for assistance or advice, but instead told the supervisor what was
happening and how she was feeling.
The unsupervised in-person visit occurred in May of 2022. Prior to the visit,
A.C.’s foster parent at the time testified that she gave the mother A.C.’s allergy and
asthma medication, as well as a medication log with the method to administer the
medication and the proper dosage. The foster parent also had requested that the
mother document the medication on the log, as it was required. The mother did not
document the administration of any medication in the log, and A.C. told the foster
parent that the child had received a “full cup” of one of his medications. The foster
parent checked the medication bottle and testified that the amount missing was more
than it should have been after the visit. A.C. was supposed to receive a 2.5 milliliter
dose and the foster parent estimated that a “full cup” would be approximately 22 to
24 milliliters. The 2INgage supervisor at the time testified that the mother indicated
that she only gave A.C. a one-half cup of the medication on two days, not a full cup.
The supervisor indicated that she was not sure that the mother ever understood the
issue regarding the incorrect dosage of medication given. The child was diagnosed
with ADHD and oppositional defiant disorder with a possible diagnosis of a
dysregulation mood disorder. He is on medication for ADHD and mood regulation,
and his caseworker testified that it is important for this medication to be given to
him accurately.
The 2INgage supervisor testified that an ICPC (Interstate Compact Placement
Request) home study was requested for the mother. Following the removal of A.C.
in July 2021, the mother stayed in Abilene for two months before she returned to
Louisiana. The ICPC request was denied “based on policy placement request
criteria, which includes information received from our criminal background check.”
The mother testified that she had prior criminal convictions for “crime against
nature,” prostitution, and theft, but that she had not had any charges at all since A.C.
7
was born. Despite the ICPC request denial, A.C.’s caseworker visited the mother’s
apartment in Louisiana. The apartment has two bedrooms and two bathrooms, and
the caseworker testified it was a safe and appropriate space for the child. The mother
was employed sporadically throughout the case, but the caseworker agreed that the
mother had a legal source of income.
The caseworker testified that the Department had a home approved for the
adoption of A.C. and that she believed that the termination of both parents’ rights1
was in the best interest of the child. The trial court terminated the mother’s rights
under subsections (D) and (E) of Section 161.001(b) of the Texas Family Code,
finding termination to be in the best interest of the child. This appeal followed.
Analysis
Endangering Conduct
In the mother’s first issue, she challenges the findings made by the trial court
under subsections 161.001(b)(1)(D) and (E). We must address a parent’s challenge
to a trial court’s findings under subsection (D) or (E). See In re N.G., 577 S.W.3d
230, 234–35 (Tex. 2019) (addressing due process and due course of law with respect
to appellate review of grounds (D) and (E) and holding that an appellate court must
provide a detailed analysis if affirming the termination on either of these grounds).
Under subsection (D), termination is permitted when the parent has
“knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child.”
FAM. § 161.001(b)(1)(D). The relevant time frame for evaluating this ground is
before the removal of the child or a monitored return, as these conditions must be
experienced by the child, not anticipated. See In re J.W., 645 S.W.3d 726, 749 (Tex.
1
The father signed an Affidavit of Relinquishment on December 31, 2022, and the affidavit was
admitted as an exhibit. The trial court terminated the father’s rights in accordance with the request, and the
father has not submitted an appeal.
8
2022). “The suitability of a child’s living conditions and the conduct of parents or
others in the home are relevant to a Subsection (D) inquiry.” Id. (citing In re R.S.-
T., 522 S.W.3d 92, 108–09 (Tex. App.—San Antonio 2017, no pet.)).
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and
conscious course of conduct by the parent is required. In re D.T., 34 S.W.3d 625,
634 (Tex. App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228
(Tex. App.—Eastland 1999, no pet.). With respect to the sufficiency of the evidence
to support a finding under subsection (E), “endangering conduct is not limited to
actions directed towards the child.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009)
(citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Nor
does the child actually have to suffer an injury. Id. The endangering conduct may
include the parent’s actions before the child’s birth and may relate to the parent’s
actions while the parent had custody of other children. Id.; In re S.T., No. 11-19-
00363-CV, 2020 WL 2610393, at *3–4 (Tex. App.—Eastland May 18, 2020, pet.
denied) (mem. op.) (upholding finding under subsection (E) based upon parent’s
conduct with other children). Additionally, domestic violence may constitute
evidence of endangerment. C.J.O., 325 S.W.3d at 265.
Support for a finding under either subsection (D) or (E) is enough to uphold
the termination of the parental rights of the mother. The evidence presented at trial
clearly supports the finding under subsection (E). The record shows that the mother
was inconsistent in taking her own medication, leading to a manic episode which
left the child unattended at an outdoor bus station in a high traffic, high crime area
at only four years old. The mother testified that she consistently would disregard
9
medical instructions for her medication. The psychologist who evaluated the mother
testified that not taking her medication consistently would increase the chance of
another manic episode—or an episode where she was not in control. The mother
was also unable to properly administer allergy medication to the child during the
unsupervised in-person visit, and the caseworker testified that, with the child’s new
medications, proper administration was vital. The record also shows that the mother
was unable to manage the child’s behavior—once feeling so overwhelmed she left
her home and traveled by bus to another state because she was stressed and
frustrated, and another time, feeling so overwhelmed she covered her head with a
blanket to block out his “noise” and called the case supervisor to complain. Further,
the mother was unable to show she would be able to discipline the child, giving in
to his outbursts to stop the negative behavior. Finally, the mother tested positive for
cocaine and oxycodone in October 2022, admitting that she sought out the
oxycodone from a friend because she was not feeling well.
Based upon the evidence presented at trial regarding conduct relevant to the
care of A.C., the trial court could have reasonably found by clear and convincing
evidence that the mother engaged in a course of conduct that endangered A.C. See
J.W., 645 S.W.3d at 749. Therefore, we hold that the evidence is legally and
factually sufficient to uphold the trial court’s finding under subsection (E).
Accordingly, we overrule the mother’s first issue. Because only one statutory
ground is necessary to support termination and because we have upheld the trial
court’s finding as to subsection (E), we need not address the arguments as to
subsection (D). See FAM. § 161.001(b)(1); N.G., 577 S.W.3d at 234–35; see also
TEX. R. APP. P. 47.1.
10
Best Interest
In the mother’s second issue, she challenges the sufficiency of the evidence
to support the trial court’s finding that termination of her parental rights would be in
the best interest of A.C.
With respect to A.C.’s best interest, the evidence set forth above shows that
the mother was not able to meet the needs of A.C. and was not able to take care of
herself in a manner that would ensure A.C.’s safety. Clear and convincing evidence
showed that placing A.C. in a home with the mother would create a risk of danger
to his safety. Testimony showed that the mother was not able to manage or handle
A.C.’s behavior, was not able to properly administer prescribed medicine to A.C.,
was unable to consistently take her own prescribed medication, and was using
controlled substances during A.C.’s removal. At the time of the termination hearing,
the Department had identified an approved placement option for A.C., should
termination be granted. Furthermore, the case manager testified that it would be in
A.C.’s best interest to terminate the parental rights of the mother.
The trial court, as the factfinder, is the sole judge of the witnesses’ credibility.
A.B., 437 S.W.3d at 503. In light of the deference to be given the trial court in this
regard, the evidence presented at trial, and the Holley factors, we conclude that the
trial court could reasonably have formed a firm belief or conviction that termination
of the mother’s parental rights would be in A.C.’s best interest. See Holley, 544
S.W.2d at 371–72. Upon considering the record as it relates to the emotional and
physical needs of the child now and in the future, the emotional and physical danger
to the child now and in the future, the parental abilities of those involved, the plans
for the child by the Department, the stability of the home or proposed placement, the
acts or omissions of the parent that may indicate the existing parent-child
relationship is not a proper one, and any excuse for the acts or omissions of the
parent, we hold that the evidence is legally and factually sufficient to support the
11
trial court’s finding that termination of the mother’s parental rights is in the best
interest of A.C. See id. We defer to the trial court’s findings as to the child’s best
interest, see C.H., 89 S.W.3d at 27, and we cannot hold in this case that the trial
court’s findings as to best interest are not supported by clear and convincing
evidence. Accordingly, we overrule the mother’s second issue.
This Court’s Ruling
We affirm the trial court’s order of termination.
W. BRUCE WILLIAMS
JUSTICE
September 21, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
12