In the Interest of Z.S., a Child v. the State of Texas ( 2023 )


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  • Opinion filed December 21, 2023
    In The
    Eleventh Court of Appeals
    __________
    No. 11-23-00184-CV
    __________
    IN THE INTEREST OF Z.S., A CHILD
    On Appeal from the 326th District Court
    Taylor County, Texas
    Trial Court Cause No. 10763-CX
    MEMORANDUM OPINION
    This is an accelerated appeal from an order in which the trial court terminated
    the parental rights of the mother, Appellant, to her infant son, Z.S.1 On appeal,
    Appellant presents one issue in which she challenges the legal and factual
    sufficiency of the evidence to support the trial court’s finding that termination is in
    Z.S.’s best interest. We affirm the trial court’s order of termination.
    1
    The trial court also terminated the parental rights of Z.S.’s unknown father. No appeal has been
    filed on behalf of the father.
    Termination Findings and Standards
    The termination of parental rights must be supported by clear and convincing
    evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2023). To terminate
    parental rights, 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), 2 and that
    termination is in the best interest of the child. Id. at § 161.001(b)(2).
    In the present case, after a bench trial, the trial court found that Appellant:
    (1) engaged in conduct which endangered Z.S.’s physical or emotional well-being;
    and (2) failed to comply with the provisions of a court order that specifically
    established the actions necessary for her to obtain the return of Z.S. who has been in
    the temporary managing conservatorship of the Department of Family and Protective
    Services for not less than nine months as a result of the child’s removal from
    Appellant for abuse or neglect. See FAM. § 161.001(b)(1)(E), (O). The trial court
    further found, pursuant to Section 161.001(b)(2), that termination of Appellant’s
    parental rights was in the child’s best interest. Id. § 161.001(b)(2). Appellant
    challenges the legal and factual sufficiency of the evidence to support the trial court’s
    finding that termination of her parental rights is in the best interest of Z.S.
    In reviewing a legal sufficiency challenge, we must decide whether a
    reasonable trier of fact could have formed a firm belief or conviction that its finding
    was true. In re J.W., 
    645 S.W.3d 726
    , 741 (Tex. 2022). “Bearing in mind the
    2
    We note that the legislature recently amended Section 161.001 to include additional requirements
    for trial courts in termination suits filed by the Department of Family and Protective Services (the
    Department) and a new ground for termination that relates to convictions for criminal or online solicitation
    of a minor; however, these amendments only apply to suits filed on or after September 1, 2023. Act of
    May 26, 2023, 88th Leg., R.S., ch. 728, §§ 1, 3, 
    2023 Tex. Sess. Law Serv. 1770
    , 2177 (codified at FAM.
    § 161.001(b)(1)(V)); Act of May 29, 2023, 88th Leg., R.S., ch. 675, §§ 1, 8, 2023 Tex. Sess. Law. Serv.
    1646–47 (codified at FAM. § 161.001(f), (g)). The original petition to terminate the parent-child
    relationship in this case was filed on July 8, 2022. We therefore apply the law in effect on the date the suit
    was filed.
    2
    required appellate deference to the factfinder, we look at all the evidence in the light
    most favorable to the finding, assume the factfinder resolved disputed facts in favor
    of its finding if a reasonable factfinder could do so, and disregard all evidence that a
    reasonable factfinder could have disbelieved or found to have been incredible.” Id.
    (internal quotation marks omitted). “However, we may not disregard undisputed
    facts that do not support the finding,” and the factfinder is the sole arbiter of the
    witnesses’ credibility and demeanor. Id. (quoting In re J.F.-G., 
    627 S.W.3d 304
    ,
    312 (Tex. 2021)) (internal quotation marks omitted).
    In assessing whether the evidence is factually sufficient, we weigh disputed
    evidence contrary to the finding against all the evidence favoring the finding. In re
    A.C., 
    560 S.W.3d 624
    , 631 (Tex. 2018). Giving due deference to the finding, we
    determine whether, based 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); In re L.C.C., 
    667 S.W.3d 510
    , 512 (Tex.
    App.—Eastland 2023, pet. denied).
    With respect to the best interest of a child, no unique set of factors need be
    proved. L.C.C., 667 S.W.3d at 513. 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 omissions of the parent that may indicate the
    existing parent-child relationship is not a proper one; and (9) any excuse for the acts
    3
    or omissions of the parent. 
    Id.
     Additionally, evidence that proves one or more
    statutory grounds for termination may constitute evidence illustrating that
    termination is in the child’s best interest. In re C.J.O., 
    325 S.W.3d 261
    , 266 (Tex.
    App.—Eastland 2010, pet. denied).
    Evidence Presented at Trial
    The record shows that the Department became involved in July of 2022,
    approximately one month after Z.S. tested positive for cannabinoids at birth.
    Appellant’s hair follicle drug test indicated that she was positive for
    methamphetamine and marihuana metabolite. During the month that Z.S. was in
    Appellant’s care, Appellant left him in a car by himself and admitted to giving him
    apple juice and prune juice “for severe constipation.”
    After removal, the Department created a family service plan for Appellant
    with which the trial court ordered her to comply. Appellant’s service plan required
    her to maintain safe and stable housing, to maintain steady and legal employment,
    and to undergo a mental health evaluation and psychological examination and follow
    all recommendations thereof. She was also ordered to submit to random drug testing
    and participate in substance abuse counseling.
    Throughout the year that Appellant’s case was pending, she lived in at least
    six different locations. Appellant resided in a women’s shelter called the Noah
    Project when Z.S. was removed but was expelled shortly thereafter for violating the
    shelter’s alcohol policy. She next went to a respite care facility through the Betty
    Hardwick Center but was removed for “coming home smelling of alcohol.”
    Appellant stayed at the Salvation Army for “[a] couple of nights” before moving in
    with the manager of the strip club where she was working. She left after the manager
    assaulted her and rented an apartment in October of 2022.
    4
    Appellant became delinquent on rent, so she left her apartment after three or
    four months.    She moved in with two males that she met while working at
    McDonald’s. When the caseworker, Cameron Walker, visited the home, he saw
    drug paraphernalia and smelled marihuana. Shortly thereafter, Appellant and Jarred,
    one of her roommates who impregnated her, moved to a different apartment. Finally,
    in May of 2023, two months before the final hearing, Appellant briefly lived in San
    Antonio, then returned to Abilene.
    Walker and Appellant were the only two testifying witnesses at the final
    termination hearing. They agreed on Appellant’s lack of stable housing but gave
    differing accounts of Appellant’s drug use and performance of her service plan
    requirements.
    In addition to testing positive at the beginning of the case, Appellant tested
    positive for methamphetamine, cocaethylene, cocaine metabolite, and marihuana
    metabolite in September of 2022. She refused to submit to drug testing in December
    of 2022 and in February and March of 2023. Appellant testified that she last used
    methamphetamine “a long, long, long, long time ago,” and “[e]xperimented with
    pills, silly stuff” when she was “much younger.” However, she simultaneously
    attested that the only drug she ever used was marihuana.
    Appellant attributed her positive test in June to methamphetamine exposure
    while living in a “trap house” in San Antonio. To explain her positive test results
    from September, Appellant posited that unknown individuals broke into her
    apartment and “laced [her] up,” or put cocaine and methamphetamine in her drinks.
    When asked about Z.S.’s positive test, she stated that she had no concerns, because
    “there was no reason” for her or Z.S. to test positive.
    Appellant maintained that Z.S. faced no difficulties or developmental issues.
    But according to Walker, Z.S. was born with gastrointestinal issues, an extra digit
    5
    on each hand, torticollis, and was slow to hold his head up and sit up on his own.
    Z.S. did not tolerate gluten, soy, and lactose for the first ten months of his life and
    required several months of occupational and physical therapy to overcome his
    developmental delays.
    Since April of 2023, Z.S. has been living with his great aunt, S.J., in Virginia,
    who is willing and able to meet Z.S.’s physical, mental, and emotional needs long-
    term.
    Prior to April, Appellant consistently attended her weekly supervised visits
    with Z.S., yet not without complications. The visitation supervisor reported that
    Appellant “seemed under the influence” on a few occasions, and that she once had
    to block the door to stop Appellant from leaving with Z.S. Appellant attempted to
    bring a beer to another visit and threatened a 2INgage employee in February of 2023.
    Appellant asserted that she completed several of her service plan
    requirements, including individual counseling and substance abuse counseling. But
    Walker reported that Appellant did not engage in mental health services. Appellant
    was referred to substance abuse counseling and parenting classes but never attended
    her scheduled appointments. Appellant protested her bipolar disorder and alcohol
    use disorder diagnoses and failed to follow the recommendations of her
    psychological evaluation. According to Appellant, her mental health issues are
    resolved.
    The Department asked the trial court to terminate Appellant’s parental rights
    to Z.S. so that S.J. could adopt him. Appellant asked the trial court not to terminate
    her parental rights but requested that Z.S. remain with S.J. “until everything is sorted
    out.” The trial court found by clear and convincing evidence that Appellant’s drug
    use endangered Z.S.’s emotional or physical well-being, and that Appellant failed to
    comply with her Family Plan of Service, which she was ordered to complete by the
    6
    trial court for the return of her child. See FAM. § 161.001(b)(1)(E), (O). The trial
    court further found that terminating Appellant’s parental rights was in Z.S.’s best
    interest. See id. § 161.001(b)(2).
    Best Interest of the Child
    In Appellant’s sole issue, she asserts that the evidence presented at trial was
    insufficient to prove by clear and convincing evidence that the termination of her
    parental rights is in the best interest of Z.S. The trial court, as the trier of fact, is the
    sole judge of the witnesses’ credibility. J.F.-G., 627 S.W.3d at 312. We are not at
    liberty to disturb the determinations of the trier of fact so long as those
    determinations are not unreasonable. Id. at 311–12; In re J.P.B., 
    180 S.W.3d 570
    ,
    573 (Tex. 2005). Giving due deference to the trial court, we hold that, based on the
    evidence and the Holley factors, the trial court could have reasonably formed a firm
    belief or conviction that termination of Appellant’s parental rights would be in the
    best interest of Z.S. See Holley, 544 S.W.2d at 371–72.
    The trial court was presented with ample evidence that Appellant lacked the
    parental abilities to meet Z.S.’s physical and emotional needs now and in the future.
    It is undisputed that Appellant failed to maintain a safe and stable environment for
    her child, and that she wanted Z.S. to remain with her aunt “[u]ntil housing comes
    in.” Appellant testified that she has been waiting over a year for rental assistance
    through the federal housing choice voucher program.
    Appellant’s housing matters aside, perhaps most concerning is her wholesale
    denial of her mental health and substance abuse issues, and how they affected Z.S.
    Appellant was indifferent when asked about Z.S.’s positive drug test and told the
    trial court that he had no developmental delays. Yet, the evidence shows that Z.S.
    endured several months of therapy to hold his head up, stand, and walk. And,
    according to Appellant, her positive drug tests were purportedly due to unidentified
    7
    intruders breaking into her apartment and putting cocaine and methamphetamine in
    her drinks, and her being exposed to methamphetamine while living in “trap houses.”
    The trial court’s best-interest finding is supported by clear and convincing
    evidence. The trial court, as the factfinder, was free to believe that Appellant
    voluntarily used drugs while pregnant with Z.S. and continued to do so thereafter.
    See In re J.W., 645 S.W.3d at 741. Appellant endangered Z.S. through her drug use.
    See In re E.M., 
    494 S.W.3d 209
    , 222–23 (Tex. App.—Waco 2015, pet. denied) (“A
    parent’s continued drug use demonstrates an inability to provide for the child’s
    emotional and physical needs and to provide a stable environment for the child.”)
    (citing In re F.A.R., No. 11-04-00014-CV, 
    2005 WL 181719
    , at *4 (Tex. App.—
    Eastland Jan. 13, 2005, no pet.) (mem. op.)).
    Appellant likewise failed to acknowledge her mental health issues, despite
    evidence to the contrary. See In re R.J., 
    579 S.W.3d 97
    , 118 (Tex. App.—Houston
    [1st Dist.] 2019, no pet.) (“While mental illness is not a ground for parental
    termination, the impact of a parent’s mental illness on [his or her] ability to parent
    and the stability of the home are relevant factors in the best interest of the child
    analysis.”); In re A.T., No. 11-22-00252-CV, 
    2023 WL 2169512
    , at *5 (Tex. App.—
    Eastland Feb. 23, 2023, pet. denied) (evidence was legally and factually sufficient
    to support the trial court’s best interest finding considering, among other factors in
    the record, the appellant’s continuing mental health issues, her criminal activity
    while the case was pending, and the instability of her situation).
    The record also revealed that Appellant’s parental rights to her five-year-old
    child were terminated in September of 2022. See C.H., 89 S.W.3d at 28 (a parent’s
    prior history of child neglect has a bearing on the parent’s fitness to provide for his
    or her other children). In this regard, Appellant refused to take accountability for
    8
    her actions contributing to that termination order, claiming that she was
    “misrepresented,” and “[t]here [were] a lot of discrepancies.”
    Most importantly, given the child-centered focus of the best-interest inquiry,
    we may not discount or minimize Z.S.’s improvement since removal. See J.W., 645
    S.W.3d at 746–47. Z.S. became quickly attached to S.J., who took twelve weeks off
    of work to care for Z.S. as he adjusted to his new home. The Department concluded
    that S.J. is willing and able to meet Z.S.’s physical, mental, and emotional needs and
    wishes to adopt him. Even Appellant agreed that Z.S. was safe with S.J.
    The evidence showed that Appellant failed to maintain safe and stable
    housing, did not submit to drug testing on several occasions, tested positive at least
    twice throughout the pendency of the case, did not provide proof of employment,
    and refused to engage in mental health services. Not only has Appellant failed to
    address the Department’s initial reasons for intervening—her drug use—she refused
    to acknowledge it, and it continued throughout the year after service initiation. See
    Holley, 544 S.W.2d at 371–72; In re L.G.R., 
    498 S.W.3d 195
    , 204 (Tex. App.—
    Houston [14th Dist.] 2016, pet. denied) (noting a parent’s drug use supports finding
    that termination is in best interest of the child). The trial court may have reasonably
    inferred that past endangering conduct may occur again in the future if the child is
    returned to Appellant. See In re J.D., 
    436 S.W.3d 105
    , 118 (Tex. App.—Houston
    [14th Dist.] 2014, no pet.); see also C.H., 89 S.W.3d at 27 (holding the same
    evidence supporting termination under one of the grounds listed in § 161.001(b)(1)
    may be probative in a best interest determination); C.J.O., 325 S.W.3d at 266 (same).
    Given Appellant’s indifference and dismissal of the Department’s concerns, we
    conclude that the trial court could have reasonably found that terminating her
    parental rights was in Z.S.’s best interest.
    9
    Upon considering the record as it relates to Appellant’s actions and inactions,
    the emotional and physical danger to the child now and in the future, the emotional
    and physical needs of the child now and in the future, Appellant’s parental abilities,
    her drug use, and the plans for the child by the Department, we hold that the evidence
    is legally and factually sufficient to support the finding that termination of
    Appellant’s parental rights is in the best interest of the child. See Holley, 544 S.W.2d
    at 371–72; J.W., 645 S.W.3d at 741. Accordingly, we overrule Appellant’s sole
    issue.
    This Court’s Ruling
    We affirm the order of the trial court.
    JOHN M. BAILEY
    CHIEF JUSTICE
    December 21, 2023
    Panel consists of: Bailey, C.J.,
    Trotter, J., and Williams, J.
    10
    

Document Info

Docket Number: 11-23-00184-CV

Filed Date: 12/21/2023

Precedential Status: Precedential

Modified Date: 12/23/2023