In the Interest of L.W., a Child v. the State of Texas ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00059-CV
IN THE INTEREST OF L.W., A CHILD
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court No. 91297
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Chief Justice Stevens
MEMORANDUM OPINION
A few weeks after her birth, The Texas Department of Family and Protective Services
removed L.W.1 from Mother’s care because of, among other things, Mother’s admitted use of
methamphetamine during the pregnancy and Mother’s positive test for methamphetamine after
she was released from the hospital. About one year later, on the petition of the Department, the
trial court terminated Mother’s parental rights to L.W. based on statutory grounds N and O and
its finding that termination was in the best interests of the child.2 See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(N), (O), (2). In this appeal, Mother challenges the legal and factual sufficiency
of the evidence supporting the trial court’s finding that termination of her parental rights was in
the best interest of L.W. Because we find that the evidence was legally and factually sufficient
to support the trial court’s best-interest finding, we affirm the trial court’s judgment.
I. Background
The evidence at trial showed that the Department opened an investigation on May 6,
2022, after it received a report from Hunt Regional Medical Center that Mother had tested
positive for methamphetamine when she was admitted to the hospital on April 27, 2022, and
again on May 6, 2022, after she gave birth to L.W. During the investigation, Mother disclosed
that she started using methamphetamine four years earlier but initially maintained that she had
last used it before New Year’s. Later, she admitted that she used methamphetamine during the
pregnancy but asserted that she used “just enough methamphetamine[] to calm her cravings.”
1
In order to protect the privacy of the child, we refer to her by her initials and refer to her family members by
pseudonyms. See TEX. R. APP. P. 9.8(b)(2).
2
The trial court also terminated the parental rights of L.W.’s unknown father.
2
She also disclosed (1) that she did not receive any prenatal care with L.W., (2) that, in the past,
an ex-boyfriend had put her in the hospital as a result of domestic violence, and (3) that L.W.
was a child born as a result of rape. Mother also agreed to take a hair-follicle drug test, but when
the Department received the results, it was concerned that Mother was actively using
methamphetamine.3
Over the course of the investigation, Mother told Cassandra Moreno, the Department’s
investigator, that she needed drug classes and rape counseling. Moreno suggested a drug
assessment, drug classes, and counseling at Lakes Regional MHMR Center, as well as a program
at Women in Need (WIN) that provided shelter, domestic violence classes, and counseling.
Mother expressed an interest in going to Nexus for inpatient treatment, but Nexus did not accept
her.
Moreno testified that the removal process was triggered when L.W. was ready for
discharge from the hospital around June 16, 2022. She testified that removal was necessitated
because of Mother’s positive result for methamphetamine, her lack of stable housing, her prior
history with the Department,4 and her failure to engage in or complete any services to address
her methamphetamine use. The Department filed a petition for protection of L.W. on June 28,
2022, and the trial court entered an order for protection that same day.
Stacie Graf, a conservatorship worker for the Department, testified that L.W. was in a
kinship placement in the same home as her half-brother, C.W., whom the kinship placement
3
Mother was released from the hospital about four days after giving birth.
4
Mother’s parental rights to C.W., who was born on May 23, 2020, were terminated due to her methamphetamine
use.
3
adopted after Mother’s parental rights were terminated. She testified that, in C.W.’s case,
Mother’s needs were similar to her needs in this case and that Mother had court-ordered services
to assist with domestic violence, victimization, counseling, parenting, and substance-abuse
treatment. In this case, the Department also addressed housing, stability, income, transportation,
support, and Mother’s seizures and high blood pressure.
Graf met with Mother on August 1, 2022, and developed a family service plan. At the
adversary hearing on that same day, Mother agreed to work the services set forth in the service
plan and ordered by the trial court. The ordered services included that Mother (1) submit to a
drug and alcohol assessment and follow any recommendations; (2) complete an inpatient drug
treatment program and follow any recommendations; (3) submit to a psychosocial evaluation and
follow any recommendations; (4) complete individual counseling, parenting classes, and
domestic violence class; (5) submit to drug tests; (6) participate in Narcotics
Anonymous/Alcoholics Anonymous (NA/AA) or Celebrate Recovery at least three hours per
week; (7) abstain from drug and alcohol use; and (8) complete a urine analysis and hair-follicle
drug test that day. Mother completed a urine analysis and a hair-follicle test later that day.
In September 2022, Graf sent Mother for a drug test, but Mother failed to go, which
resulted in the suspension of her visitation with L.W. because it was presumed that the test would
have been positive. On September 13, Mother sent a text to Graf that stated she was on her way
to Restored180, an inpatient treatment facility, and the facility confirmed that she had been
admitted. However, Mother never responded to any of Graf’s further inquiries regarding her
time at Restored180. Thereafter, although Graf attempted to communicate with Mother at least
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once a month by telephone, text, and email, Mother never responded to her.5 Graf also notified
Mother monthly regarding drug tests.
The evidence also showed that Mother (1) did not submit to a drug and alcohol
assessment, (2) did not complete inpatient treatment, (3) never provided proof of attendance at
NA/AA or Celebrate Recovery, (4) did not submit to psychosocial evaluation, and (5) did not
attend individual counseling or parenting classes. Graf explained that it was important for
Mother to complete parenting classes because she had four children and was not caring for any
of them due to her methamphetamine use. Mother also did not attend and complete the WIN
program to address domestic violence and her lack of stable housing. Mother never provided the
Department with any proof of stable housing or income. Through the final permanency hearing
on May 15, 2023, Mother had made no progress on her services, housing, or income. In
addition, Mother did not attend the permanency hearings in December, March, or May.6
Graf also testified that Mother’s last visit with L.W. was on September 1, 2022, and that,
since that time, Mother had not expressed that she wanted to maintain a relationship with L.W.
and had sent no gifts, cards, or letters to L.W. She opined that she did not believe Mother could
provide L.W. with a safe and stable environment because Mother had not demonstrated that she
could provide that for herself. Graf explained that L.W. was thirteen months old and needed a
safe place to eat and sleep, with no exposure to drugs, and that she needed routine medical and
dental care and safe and reliable transportation, none of which Mother showed she could provide.
5
Graf testified that Mother left her a voicemail on April 21 when Graf was on leave. However, when Graf attempted
to contact her the next week, Mother did not respond.
6
Mother also did not attend the final hearing or respond to communications from her attorney.
5
Graf also testified that L.W. needed timely attention to her needs, physical stimulation to aid her
development and learning, and loving care so she could learn to bond. She opined that the
kinship placement met all of L.W.’s needs. She also opined that, because Mother had not
demonstrated that she had the skills necessary to meet L.W.’s needs, L.W. would be in emotional
and physical danger if she were placed in the unsupervised care of Mother. Because Mother did
not actively engage in the case, did not show a willingness to improve her circumstances so she
could meet L.W.’s needs, and did not make any effort to parent L.W., Graf opined that it was in
L.W.’s best interest that Mother’s parental rights be terminated.
Graf testified that the Department’s plan for L.W. was for the kinship placement to adopt
her,7 if Mother’s parental rights were terminated. Based on her observation of L.W. in her
placement, Graf opined that L.W. was bonded with her brother, C.W., and with the kinship
placement and their other children. She explained that C.W. and the other children played with
L.W., shared their toys with her, talked to her, and were very happy she was there. In addition,
L.W. was happy and comfortable around her kinship placement and liked when they held and
hugged her. Graf also testified (1) that the household was safe and stable, (2) that the family was
in the same house for at least three years, (3) that they had a stable and adequate income, and
(4) that the family seemed very comfortable and secure.
Kayla Jean Anderson, the Court Appointed Special Advocate (CASA) volunteer assigned
to the case, testified that she attempted to communicate with Mother throughout the case but was
not successful. She had no opinion regarding Mother’s parenting abilities because of the lack of
7
The kinship placement desired to adopt L.W.
6
communication and because she was unable to observe her with L.W. Like Graf, she opined that
Mother was not able to meet L.W.’s physical and emotional needs because of Mother’s absence
from the case. She also agreed that Mother had not demonstrated the ability to provide a safe
and stable environment for L.W. She also opined that L.W. would be in emotional and physical
danger in the unsupervised care of Mother since Mother was absent during the case, did not
attend and pass drug tests, did not attend visitation with L.W., and did not complete her services.
Anderson also concurred with Graf’s assessments of L.W.’s relationship with the kinship
placement and of their home environment.
After arguments of counsel, the trial court found that termination of the parental rights of
Mother was in the best interest of L.W. and that the evidence supported such termination under
statutory grounds N and O. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N), (O), (2). This appeal
ensued.
II. Standard of Review
“The natural right existing between parents and their children is of constitutional
dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to
make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel
v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates
fundamental interests, a higher standard of proof—clear and convincing evidence—is required at
trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). “This Court is therefore
required to ‘engage in an exacting review of the entire record to determine if the evidence is . . .
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sufficient to support the termination of parental rights.’” Id. (quoting In re A.B., 437 S.W.3d at
500). “[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id.
(alteration in original) (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007,
pet. denied)).
“In order to terminate parental rights, the trial court must find, by clear and convincing
evidence, that the parent has engaged in at least one statutory ground for termination and that
termination is in the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001; In re
E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that ‘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. (quoting TEX. FAM. CODE ANN. § 101.007). “This
standard of proof necessarily affects our review of the evidence.” Id.
“In our legal sufficiency review, we consider all the evidence in the light most favorable
to the findings to determine whether the fact-finder reasonably could have formed a firm belief
or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920
(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)
(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We
assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a
reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have
reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re
J.P.B., 180 S.W.3d at 573).
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“In our review of factual sufficiency, we give due consideration to evidence the trial
court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209
S.W.3d 105, 109 (Tex. 2006) (per curiam)). Also, we “consider whether disputed evidence is
such that a reasonable fact[-]finder could not have resolved that disputed evidence in favor of its
finding.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). “If, in light of the entire record, the
disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding is
so significant that a fact[-]finder could not reasonably have formed a firm belief or conviction,
then the evidence is factually insufficient.” In re L.E.S., 471 S.W.3d at 920 (quoting In re J.F.C.,
96 S.W.3d at 266). “In applying this standard, ‘[a]n appellate court’s review must not be so
rigorous that the only fact[-]findings that could withstand review are those established beyond a
reasonable doubt.’” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (first alteration
in original) (quoting In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)).
“‘[I]n making this determination,’ we must undertake ‘“an exacting review of the entire
record with a healthy regard for the constitutional interests at stake.”’” In re L.E.S., 471 S.W.3d
at 920 (alteration in original) (quoting In re A.B., 437 S.W.3d at 503). We “must nevertheless
still provide due deference to the decisions of the fact[-]finder, who, having full opportunity to
observe witness testimony first-hand, is the sole arbiter when assessing the credibility and
demeanor of witnesses.” 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)). “We also recognize that . . . the fact-finder . . . may believe all,
part, or none of a witness’ testimony.” In re A.M., No. 06-18-00012-CV, 2018 WL 3077784, at
9
*3 (Tex. App.—Texarkana June 22, 2018, pet. denied) (mem. op.) (citing In re H.R.M., 209
S.W.3d at 109).
“Despite the profound constitutional interests at stake in a proceeding to terminate
parental rights, ‘“the rights of natural parents are not absolute; protection of the child is
paramount.”’” In re L.E.S., 471 S.W.3d at 920 (quoting In re A.V., 113 S.W.3d 355, 361 (Tex.
2003)). “A child’s emotional and physical interests must not be sacrificed merely to preserve
parental rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015,
no pet.)).
III. Sufficient Evidence Supported the Trial Court’s Best-Interest Finding
In her sole issue, Mother challenges the legal and factual sufficiency of the evidence
supporting the trial court’s finding that termination of her parental rights was in the best interest
of L.W. “There is a strong presumption that keeping a child with a parent is in the child’s best
interest.” In re R.W., 627 S.W.3d 501, 516 (Tex. App.—Texarkana 2021, no pet.) (quoting In re
J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus Christi–Edinburg
Feb. 28, 2013, pet. denied) (mem. op.)). “Termination ‘“can never be justified without the most
solid and substantial reasons.”’” In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana
2013, no pet.) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).
To determine the best interests of the child, courts consider the following Holley factors:
(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, (6) the plans for the child by these
individuals, (7) the stability of the home, (8) the acts or omissions of the parent
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that may indicate the existing parent-child relationship is not a proper one, and
(9) any excuse for the acts or omissions of the parent.
Id. at 818–19 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see In re E.N.C.,
384 S.W.3d 796, 807 (Tex. 2012); see also TEX. FAM. CODE ANN. § 263.307(b). These factors
are not exhaustive, and there is no requirement that all of them be proved to terminate parental
rights. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Further, we may consider evidence used to
support the grounds for termination of parental rights in the best-interest analysis. Id. at 28.
At thirteen months old, L.W. was too young to verbally express her desires. However,
the evidence showed that L.W. had been placed in a kinship placement for some months with the
adoptive family of her half-brother, C.W. It also showed that L.W. was happy in that family and
was bonded with C.W., his siblings, and his adoptive parents. Although testimony showed that
when Mother visited L.W. they were bonding and Mother acted appropriately, at the time of the
hearing, Mother had not visited or had any contact with L.W. for over nine months. Based on
this evidence, we find the first Holley factor favors termination.
Although there was no evidence that L.W. had any special needs, the evidence showed
that, as a young child, she needed a caregiver that would provide her a safe and stable
environment, attend to her physical needs, and provide her the necessary care and support to
meet her emotional and developmental needs. In addition, the evidence showed that, after
Mother began using methamphetamine, she gave up custody of her two oldest children to their
grandmother, her parental rights to C.W. were terminated because of her substance abuse, and
L.W. was removed from her care primarily because of her substance abuse. The evidence also
showed that, although the Department offered her services to address her substance abuse and to
11
reinforce her parenting skills, Mother failed to complete any of those services. As a result, the
evidence showed that Mother failed to demonstrate that she had the skills and ability to provide
for the needs of L.W. and showed that she was uninterested in addressing her substance-abuse
issues or acquiring the skills and ability to provide for L.W.’s needs. Based on this evidence, we
find the second, third, and fourth Holley factors heavily favor termination.
As previously noted, Mother had not visited or made contact with L.W. for over nine
months. The evidence also showed that she had sent no gifts, cards, or letters for L.W. and never
expressed a desire to maintain a relationship with L.W. Also, there was no evidence that Mother
made any inquiry regarding the health or well-being of L.W. during her nine-month absence
from the case. Further, Mother failed to attend the final hearing in which her parental rights to
L.W. were at issue. Those acts and omissions strongly indicate that the parent-child relationship
between Mother and L.W. was not a proper one and favored termination.
Finally, the excuses offered for Mother’s acts and omissions were her addiction to
methamphetamine and her history of domestic violence. However, the Department offered
services that were designed to address those issues and the trauma associated with them.
Mother, although initially expressing an interest in those services, failed to attend or complete
any of them. As a result, the fifth and ninth Holley factors also favor termination.
Based on this record and applying the clear and convincing evidence standard, we find
that a fact-finder could reasonably form a firm belief or conviction that termination of Mother’s
parental rights was in the best interest of L.W. See In re L.E.S., 471 S.W.3d at 920. As a result,
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we find that the evidence was legally and factually sufficient to support the trial court’s best-
interest finding. We overrule Mother’s sole issue.
IV. Conclusion
For the reasons stated, we affirm the trial court’s judgment.
Scott E. Stevens
Chief Justice
Date Submitted: October 23, 2023
Date Decided: October 27, 2023
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