in the Interest of Q.R.W.a/k/a Q.W. S.R.W., Children v. Texas Department of Family and Protective Services ( 2022 )

Affirmed and Memorandum Opinion filed September 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00385-CV
IN THE INTEREST OF Q.R.W. A/K/A Q.W. AND S.R.W., CHILDREN
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2021-00628J
MEMORANDUM OPINION
In this appeal from a judgment terminating the parent-child relationship, the
question presented is whether the evidence is legally and factually sufficient to
support the trial court’s predicate and best-interest findings. For the reasons given
below, we conclude that the evidence is sufficient, and we affirm the trial court’s
judgment.
BACKGROUND
In February 2021, the Department received a referral regarding the medical
neglect of the Mother’s Son, who at that time was twenty-two months old. The
referral indicated that the Mother had brought the Son to a telehealth visit,
complaining that the Son was unable to stand or walk. The doctor ordered a battery
of tests because the Son should have begun standing at around nine months of age
and walking at around one year of age. The Mother scheduled seven appointments
for the Son, but she cancelled all of them.
By March 2021, the Mother had given birth to the Daughter. And by April
2021, the entire family was found living in a tent. Law enforcement discovered that
the tent was hot, that the children were sweating, and that the Son was crying. The
children were removed from the tent and placed with a foster family.
The Mother was given a family service plan with the goal of reunification.
Under the terms of that plan, the Mother was required to provide proof of stable
housing and employment. After she failed to comply with these terms, the
Department moved to terminate her parental rights.
The Mother received notice of the termination hearing, but she did not
personally attend it. Her counsel appeared in her stead, and he called no witnesses
on behalf of the Mother.
At the end of the hearing, the trial court orally announced that the Mother’s
parental rights should be terminated with respect to both of her children on predicate
grounds (D) and (O). See Tex. Fam. Code § 161.001(b)(1)(D) (knowingly placing
or allowing the children to remain in conditions or surroundings that endangered
their physical or emotional well-being); Tex. Fam. Code § 161.001(b)(1)(O) (failing
to comply with the provisions of a court-ordered service plan). However, when the
trial court entered its written judgment, the predicate grounds were identified as (E)
and (O). See Tex. Fam. Code § 161.001(b)(1)(E) (engaging in conduct or knowingly
placing the children with persons who engaged in conduct that endangered their
physical or emotional well-being).
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The Mother now appeals from this written judgment.
PREDICATE FINDING
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).
The trial court here orally found that the Mother’s rights should be terminated
on the predicate grounds (D) and (O), but in its written judgment, the trial court
found that the Mother’s rights should be terminated on the predicate grounds (E) and
(O). The trial court’s written findings control over its conflicting oral findings. See
Kaur-Gardner v. Keane Landscaping, Inc., No. 05-17-00230-CV, 2018 WL
2191925, at *4 (Tex. App.—Dallas May 14, 2008, no pet.) (mem. op.).
The Mother argues in her appellate brief that the evidence is insufficient to
support a finding under predicate ground (D), without ever acknowledging that the
written judgment does not cite that predicate ground. In fact, the Mother does not
even address in her brief the trial court’s finding under predicate ground (E).
Nevertheless, predicate grounds (D) and (E) are related in that they both focus on
child endangerment. We will construe the Mother’s appellate argument as a
challenge to the sufficiency of the evidence supporting predicate ground (E).
A parent “endangers” her child for purposes of predicate ground (E) if the
parent exposes the child to loss or injury. See In re M.C., 917 S.W.2d 268, 279 (Tex.
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1996) (per curiam). Under this standard, endangerment occurs even if the parent did
not direct her conduct at the child and even if the child did not actually suffer injury.
Id.A finding under predicate ground (E) 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).
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
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is so significant that a factfinder could not reasonably have formed a firm belief or
conviction. Id.The evidence here showed that the Son was born in California, and that he
was the subject of an investigation in that state because the Mother was homeless.
The Mother moved to Texas, where she has no family, and lived occasionally in a
hotel, or in a tent just outside of the hotel.
The family was located in that tent in April 2021, by which time the Mother
had recently given birth to the Daughter. When law enforcement discovered the
family, the tent was hot, and the children were dehydrated. The Son in particular had
been suffering from developmental delays. He was underweight, and though nearly
the age of two, he was wearing clothes designed for children who were twelve
months old—and even those clothes were still too large. Also, the Son was could not
stand or walk, and he was nonverbal.
The Son’s physical ailments were resolved after he was placed in foster care.
Within a month, he had gained weight and he was standing and walking. He also
received speech therapy, from which he was successfully discharged. The Foster
Dad testified that doctors could not find any underlying medical or genetic
abnormalities that would explain the Son’s issues. The doctors opined that the Son
had failed to thrive while in the Mother’s care simply because of a lack of
opportunity and a lack of proper nutrition.
The Foster Dad testified that the Daughter also had visible signs of
malnourishment when she was first placed in his care. But as with the Son, the
Daughter gained weight after receiving proper nutrition.
Because the Mother did not personally attend the trial, there is no
countervailing testimony from her. Nevertheless, the Mother suggests in her brief
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that her parental rights were terminated because she and her family were living in
poverty, which is insufficient to demonstrate that she endangered her children. This
argument fails to acknowledge the evidence that the Mother was referred to a shelter,
which could have assisted in her financial struggles, but that she consciously refused
that offering because she opposed the shelter’s rules. Also, there was evidence that
the Mother knew that the Son was experiencing physical hardships, yet she
consciously cancelled medical appointments that were intended to help him.
Considered in the light most favorable to the judgment, this evidence is legally
sufficient to support the trial court’s finding that the Mother engaged in conduct that
endangered the physical and emotional well-being of her children. Further, in view
of the entire record, we conclude that any disputed evidence is not so significant as
to prevent the trial court from forming a firm belief or conviction that termination
was warranted under predicate ground (E). We accordingly conclude that the
evidence is legally and factually sufficient to support the trial court’s finding. See In
re J.R., 171 S.W.3d 558, 578 (Tex. App.—Houston [14th Dist.] 2005, no pet.)
(“Failure to maintain a stable home, combined with failure to provide for the
children’s needs, may also support a finding under subsection 161.001(1)(E).”); see
also C.M.M. v. Dept. of Family & Protective Servs., Nos. 14-21-00702-CV & 14-
21-00730-CV, 2022 WL 1789925, at *11 (Tex. App.—Houston [14th Dist.] June 2,
2022, no pet.) (mem. op.) (“As a general rule, subjecting children to a life of
uncertainty and instability endangers the children’s physical and emotional well-
being.”).
In light of this conclusion, we need not consider whether the evidence is
legally and factually sufficient to support the trial court’s finding under predicate
ground (O). 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
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when there is also a finding that termination is in the child’s best interest.”); see also
Tex. R. App. P. 47.1 (written opinions should be as brief as practicable).
BEST-INTEREST FINDING
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., 57 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
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 Children’s Desires. The trial began just before the Son’s third birthday,
and shortly after the Daughter’s first birthday. Because of their tender ages, the
children did not testify and there is no direct evidence of their desires.
When there is no direct evidence of a child’s desires, the factfinder may
consider the child’s relationship with his or her natural family and whether the child
has bonded with his or her foster family. See In re L.G.R., 498 S.W.3d 195, 205
(Tex. App.—Houston [14th Dist.] 2016, pet. denied).
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The Department’s caseworker testified that the Mother is “very bonded” with
her children. During her visits, the Mother was calm, cooperative, kind, friendly, and
engaged. She would play with the children, sing with them, read with them, and
praise them for doing good things. However, there was evidence that the Mother
could not console the Daughter on one occasion. And critically, the Mother did not
attend the termination hearing, despite having received notice of it. The Mother also
declined an earlier invitation to Thanksgiving dinner hosted by the foster parents
because the alleged father was not welcome.
The caseworker testified that the children had bonded well with each other
and with the foster parents. The Son even identified the foster parents as mom and
dad.
The Children’s Needs. The children do not have any special needs. Since
being placed in foster care, they are both on target for meeting their developmental
milestones.
Danger to the Children. The children were discovered in a tent, dehydrated
and malnourished. The Son could neither stand nor walk, and his weight was so low
that he was ranked below the first percentile for his age. The sole cause of this
malnourishment was the Mother’s failure to adequately provide for the Son’s basic
needs. And according to the Foster Dad, the Mother did not even realize that the
children had been in poor health and had been suffering from nutritional
deficiencies. The trial court could have reasonably concluded that both the Son and
the Daughter would face renewed nutritional deficiencies if they were returned to
the Mother’s care. That conclusion is further enforced by the evidence that the
Mother had not provided proof of any stable housing or employment, and by the
evidence that the Mother had one hair follicle test revealing the presence of
methamphetamines and cocaine just three months before the termination hearing.
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See In re E.R.W., 528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no
pet.) (“A parent’s drug use supports a finding that termination is in the best interest
of the child.”).
The Mother’s Parental Abilities. The caseworker testified that the Mother
completed her parenting classes, individual counseling, psychological evaluation,
and substance abuse assessment. But because the Mother did not appear for the
termination hearing after receiving notice of it, the trial court could have reasonably
concluded that the Mother was not willing or able to parent her children.
Programs. There was no mention of any programs available to the Mother to
specifically assist her in caring for the children and promoting their best interests.
Plans. The caseworker indicated that the department had considered
placement with extended family members, but those family members either
withdrew from consideration, or the Mother objected to their involvement.
The Foster Dad testified that he and his wife desire to adopt the children in
the event that the Mother’s parental rights are terminated. In the meantime, the Foster
Dad testified that he has enrolled the Son in a learning center, which he attends twice
each week. The Foster Dad also intends to enroll both children in dance programs.
Stability of the Home. The evidence indicated that the Mother alternated
between living in a hotel and a tent. According to the caseworker, the Mother also
claimed to work various jobs, but those jobs have may been on a part-time basis, and
the Mother never provided any pay stubs. Similarly, the Mother never provided the
caseworker with any proof of stable housing.
The Foster Dad testified that he and his wife live in a home. They have no
other dependents. The Foster Dad works from home as a product manager in the
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insurance industry, and he said that he and his wife have the financial means to take
care of both of the children.
The Mother’s Acts or Omissions. Because the Mother did not personally
appear for the termination trial, there is no direct evidence explaining her acts or
omissions.
Altogether, the evidence provided the trial court with a substantial basis for
doubting whether the Mother has the housing, income, and capabilities required to
take care of her two children. 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 best interest of the children.
CONCLUSION
The trial court’s judgment is affirmed.
/s/ Tracy Christopher
Chief Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
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