In the Interest of E.P. v. the State of Texas ( 2024 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-24-00227-CV
________________
IN THE INTEREST OF E.P.
________________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 21-10-13621-CV
________________________________________________________________________
MEMORANDUM OPINION
This appeal arises from the trial court’s termination of Father’s parental rights
to his minor son, “Eric,” following a retrial to the bench. 1 We previously reversed
and remanded the trial court’s Order terminating Father’s rights. 2 See In re E.G.P.,
No. 09-22-00330-CV, 2023 WL 4013306, at *11 (Tex. App.—Beaumont June 15,
1In parental rights termination cases, to protect the identity of the minors, we
refer to the children and their family members by a pseudonym or initials. See Tex.
R. App. P. 9.8(b)(2).
2We affirmed the trial court’s Order terminating Mother’s parental rights in
the same proceeding, and she is not a party to this appeal. See In re E.G.P., No. 09-
22-00330-CV, 2023 WL 4013306, at *11 (Tex. App.—Beaumont June 15, 2023,
pet. denied) (mem. op.).
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2023, pet. denied) (mem. op.). Following the retrial, the trial court terminated
Father’s rights based on Texas Family Code subsections 161.001(b)(1)(E), (M), (N)
and (O), 161.002(b)(1) and (3) and a finding that termination was in Eric’s best
interest. See Tex. Fam. Code Ann. §§ 161.001(b)(1) (E), (M), (N), and (O), (b)(2),
161.002(b)(1), (3). In two issues, Father challenges the legal and factual sufficiency
of the evidence supporting the trial court’s: (1) findings on section 161.002(b)(1),
(3) and predicate grounds N and O; and (2) best interest finding. For the reasons
below, we affirm the trial court’s Order terminating Father’s parental rights.
I. BACKGROUND
Mother and Father were the subject of an open CPS investigation pertaining
to Eric’s older siblings when he came into care. In September 2021, the Department
amended its petition in that proceeding seeking temporary managing
conservatorship of Eric and to terminate Mother’s and Father’s parental rights. It
supported its Petition with an Affidavit of Removal from Department Investigator
Mary Nichols. Eric’s case was later severed from his siblings’ case.
A. Affidavit of Removal
Nichols averred that the Department received a report shortly after Eric’s birth
in September 2021 that Eric was born in the hospital, but Mother and Father were
running or hiding from the Department. She noted that Mother lied to the caseworker
about giving birth since Eric’s siblings were already in the Department’s care. The
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report the Department received also raised concerns that Mother and Father were
using methamphetamines again. Nichols explained that the report stated Mother was
seen running after Father’s truck, and the baby was inside the truck but unharmed,
and they had no supplies for Eric.
Nichols asserted that the day of the report, she spoke to the maternal
grandmother, who lives out of state, and confirmed that Mother gave birth to Eric.
Nichols also indicated she spoke with the CASA for the other children, who advised
he had not spoken with Mother or Father in over a month, and they had not attended
their scheduled visitation with the other children. Nichols described contacting
Father at his residence on September 12, 2021, but he refused to let her in the home.
Father denied any altercations with Mother.
When informed of his positive drug test from July, Father said he only used
once, and it was a long time ago. Father agreed to drug test for the Department. He
said he was not attending visits, because he was at work. Nichols outlined Father’s
criminal history which included burglary, a felony drug offense, assault causing
bodily injury, and evading detention.
Nichols explained that she spoke with the conservatorship caseworker who
advised that Mother and Father were not compliant with their family plan of service
or drug testing. The caseworker advised there had been no contact with the parents
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in over a month. The caseworker also said Mother and Father were not participating
in scheduled visits.
Nichols outlined that beginning in October 2020, the parents were both the
subject of another investigation, and Eric’s older sibling tested positive for
methamphetamine at birth. Accordingly, the Department put a safety plan in place
for the older siblings, which was violated. There was a “reason to believe”
determination as to both parents for neglectful supervision of Eric’s older siblings.
Nichols noted that the older children’s case remained open. Nichols stated the
Department was seeking temporary conservatorship of Eric, his siblings were in
Department custody given concerns of drug use by the parents, and in July 2021,
Mother and Father tested positive for methamphetamine.
B. Service Plan
The record shows a Family Plan of Service was prepared for Father and filed
with the trial court on October 27, 2021. Father did not sign the Plan, but it confirmed
that he participated in the conference where the Plan was developed. The Plan noted
Father’s instability and “extensive drug history[,]” and that he “tested positive during
the CPS case.” The Plan required Father to: provide documentation of housing and
proof of employment; attend a parent collaboration group meeting; complete a
parenting skills training and provide a certificate of completion; undergo a drug and
alcohol assessment; follow any recommendations for further treatment; participate
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in drug testing at CPS’s request, among other things; undergo a psychological
assessment and follow all recommendations; and, cooperate with the Department,
maintain contact with the Department, and allow the caseworker access to the home
as requested.
In the trial court’s Order from the November 12, 2021 status hearing, the trial
court found that although Father had not signed the plan, Father “has reviewed and
understands the service plan and has been advised that unless he is willing and able
to provide the child with a safe environment, . . . his parental and custodial duties
and rights may be subject to restriction or to termination[.]” The trial court ordered
that the plan of service . . . shall continue in full force and effect subject
to the following modifications:
All services completed by the parents during the companion case, 20-
11-13628, will be considered completed for purposes of this case’s
service plan. However, if a parent tests positive for drugs after the
completion of drug counseling, further drug counseling is ordered for
that parent. IT IS FURTHER ORDERED THAT [FATHER] and
[MOTHER] shall successfully complete all recommendations of
assessments taken during the companion case as well as all services
previously ordered and not completed.
(Emphasis in original.)
C. Trial
Father was represented by counsel during the retrial, but Father did not attend.
The retrial proceeded on section 161.002(1) and (3) grounds plus predicate grounds
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E, M, N, and O. See id. § 161.001(b)(1)(E), (M), (N), (O). We summarize the trial
evidence below.
1. Testimony of Rosario Salinas
Rosario Salinas testified at trial and formerly worked as a CPS caseworker
assigned to Eric and his siblings. Salinas currently works as a CASA supervisor and
has been there since July 2022. Salinas testified that Eric came into care as a newborn
and during the pendency of another case involving his siblings. Salinas testified that
during the investigation involving Eric’s siblings, his parents tried “to keep [Eric]
from CPS.” Salinas explained that CPS was involved with the older siblings due to
Mother’s and Father’s drug abuse, an ongoing issue.
Salinas testified that the Department prepared a service plan in Eric’s case and
worked with the parents on it, which was like the one in his siblings’ case. She
provided the service plan to Father and believed he understood what he must do to
obtain the return of his child. She did not recall Father working the plan and initially
believed the only service Father completed was the parenting class. After being
shown documents, Salinas testified that Father also underwent a psychological
evaluation and a substance abuse assessment. She said that Father attended the
adversary hearing and family group conference, and the report showed that they
explained all tasks to him, he understood, and he agreed to work them. Despite going
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over all the tasks in the service plan that Father needed to complete for Eric’s return,
he failed to complete them.
Salinas testified that the parents needed to do random drug testing at least
twice a month, which she went over with them, and they submitted drug tests for
this case. She explained that they scheduled weekly visits, but parents’ attendance
was unreliable – they would attend for a while then would go several months without
any contact. Salinas testified that Father was required to do a DNA test but never
did. Father did not maintain employment while the case was pending, and his contact
with the Department “was infrequent.” Salinas said that Father only visited Eric a
few times. Salinas testified that the visits were an important part of the plan for
bonding with the child, and Father had a history of failing to visit Eric. She also
testified that Eric had not seen Father enough to have a relationship with him.
Salinas testified that Eric was in the agency’s care for over nine months and
placed in a foster home, where he was doing “[w]onderful.” She explained that the
case did not progress to reunification, because Father and Mother continued testing
positive for drugs, there was no stable housing or employment, and the services were
not being met. She explained that Father’s rights were terminated in the siblings’
case within a year of filing the petition in Eric’s case. Salinas testified it was in Eric’s
best interest for Father’s rights to be terminated since Mother and Father were still
testing positive for drugs, there was not a stable home for the child, the parents were
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inconsistent, and Eric is in a stable foster home where he has been since birth, and
he has a relationship with his siblings.
2. Testimony of Michael Quinn
Michael Quinn also testified at trial. He currently works as a CASA
supervisor, but he was initially the volunteer advocate assigned to Eric’s case and
his siblings’ case. Quinn said he was the advocate on the case for a month, then he
was the supervisor until September 2023, so he was a part of Eric’s life for over two
years. Quinn said that in September 2021, Eric came into the Department’s care
during an open CPS case involving his siblings.
Quinn attended Eric’s family group conference where family services were
created and gone over, and both parents attended, although he noted that Father
missed every other hearing after that plus the first trial. Quinn testified that Father
received credit for completing two plan tasks that he had done in the companion
case. He explained there were ongoing concerns about Father’s drug use, his ability
to provide a safe and stable home, and the lack of verifiable employment. Quinn
attended some weekly visits and observed that Father appeared uncomfortable and
“not confident in his ability to comfort or be with [Eric].” He testified that between
November 2021 and March 2022, Father did not visit at all and after that, he only
visited infrequently.
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Quinn visited Eric in his foster home “at least monthly” and said the child was
“[t]hriving” there. He noted that Eric has been in the same foster home since he was
a month old. Quinn testified that it was in Eric’s best interest to terminate Father’s
parental rights, because he did not believe Father was “willing or capable of taking
care of [Eric’s] emotional or physical needs or creating a loving bond.”
3. Testimony of Randi Sutton
Randi Sutton is the current Department caseworker assigned to Eric and has
worked the case since December 2023. Sutton said she visits Eric about once a
month. Sutton testified that Eric is doing very well in his foster home, where he has
been since he was a month old. She noted that is the only family he has known.
Sutton said he is doing great “[h]ealth wise” and “[d]evelopmentally[,]” plus he is
in speech therapy and extracurriculars. Eric calls his foster parents “Mommy and
Daddy.”
Sutton has communicated with Father by text and phone, noting that she was
the one who reached out to him. She explained that she advised Father the
termination of his rights was reversed, there was a new trial set, and he would need
to contact his attorney and provided contact information. Father never contacted her
again.
Sutton testified it was in Eric’s best interest for Father’s rights to be
terminated, so his foster parents can adopt him, which they intend to do. She testified
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that Eric was in the “best permanent place that he can be in. He’s thriving there. He’s
loved there. He’s a member of the family, and I wish for it to be a permanent place
for him.”
4. Testimony of Loree McOwen
Since October 2022, Loree McOwen was the assigned CASA advocate for
Eric’s case. McOwen testified that she is unaware of Father ever reaching out to
CASA. She also testified that Eric is “thriving.” McOwen said that Eric is in speech
therapy and “talking up a storm[.]” She testified the current placement is meeting all
Eric’s needs, and she believed it was in his best interest to stay there and be adopted.
5. Other Evidence
Additional exhibits admitted at trial included: a status report to the court
showing that the Department went over the service plan with Father and its
requirements; service plans for Mother and Father; court of continuing jurisdiction
information; Diligent Search Information; Agreed Temporary Order After Show
Cause Hearing; Status Hearing Order requiring that family service plan remain in
effect; Paternity Registry Search; and Order of Termination for Eric’s siblings
terminating Father’s rights to the sibling he was the biological father of based on
predicate grounds E, N, and O.
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6. Termination
After hearing the testimony, the trial court reviewed the exhibits. The trial
court found that based on the evidence, parentage for Father had not been
established, but the Department proved by clear and convincing evidence grounds
for termination of Father’s parental rights, if any exist, under Texas Family Code
sections 161.002(b)(1) and (3). See id. § 161.002(b)(1), (3). The trial court also found
by clear and convincing evidence that the Department proved termination grounds
under Texas Family Code section 161.001(b)(1)(E), (M), (N) and (O) and that
termination of Father’s parental rights was in Eric’s best interest. See id. §
161.001(b)(1)(E), (M), (N) and (O). The trial court entered an Order terminating
Father’s rights consistent with its findings.
II. ANALYSIS
A. Predicate Grounds
Liberally construing Father’s brief, in issue one, he challenges several
independent grounds that the trial court found supported terminating his parental
rights, including section 161.001(b)(1) and (3) and predicate grounds N and O.
Nevertheless, he fails to challenge the trial court’s predicate findings based on E and
M. See id. Section 161.001(b)(1)(E) allows for termination if the trier of fact finds
by clear and convincing evidence that the parent has “engaged in conduct or
knowingly placed the child with persons who engaged in conduct which endangers
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the physical or emotional well-being of the child[.]” Id. § 161.001(b)(1)(E). Section
161.001(b)(1)(M) allows for termination if the trier of fact finds by clear and
convincing evidence that the parent “had his or her parent-child relationship
terminated with respect to another child based on a finding that the parent’s conduct
was in violation of Paragraph (D) or (E)[.]” Id. § 161.001(b)(1)(M).
The decision to terminate parental rights must be supported by clear and
convincing evidence, “the measure or 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. § 101.007; see In re J.L., 163 S.W.3d 79, 84 (Tex.
2005) (citation omitted); In re M.S., 662 S.W.3d 620, 628 (Tex. App.—Beaumont
2023, pet. denied). The movant must show that the parent committed one or more
predicate acts or omissions and that termination is in the child’s best
interest. See Tex. Fam. Code Ann. § 161.001; see also In re J.L., 163 S.W.3d at 84.
Together with a finding that termination is in the child’s best interest, only one
predicate finding under section 161.001(b)(1) is necessary to support a judgment of
termination. See Tex. Fam. Code Ann. § 161.001; In re A.V., 113 S.W.3d 355, 362
(Tex. 2003); In re M.S., 662 S.W.3d at 629.
An appellant must challenge all independent grounds that fully support a
judgment. See In re R.M.S., No. 09-19-00011-CV, 2019 WL 2620955, at *1 (Tex.
App.—Beaumont June 27, 2019, pet. denied) (mem. op.); In re S.J.R.-Z., 537
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S.W.3d 677, 682 (Tex. App.—San Antonio 2017, pet. denied). By not challenging
on appeal the trial court’s findings under section 161.001(b)(1)(E) and (M), Father
failed to challenge all independent grounds listed in the termination order.
Accordingly, we need not review Father’s challenges to the sufficiency of the
evidence supporting the trial court’s findings under subsections 161.002(b)(1), (3),
and 161.001(b)(1)(N) and (O), because this Court must accept the unchallenged
findings as true and affirm the trial court’s findings under subsections (E) and
(M). See In re R.M.S., 2019 WL 2620955, at *1; In re S.J.R.-Z., 537 S.W.3d at 682–
83; In the Interest of N.L.D., 412 S.W.3d 810, 818 (Tex. App.—Texarkana 2013, no
pet.). We overrule issue one.
B. Best Interest
In issue two, Father challenges the legal and factual sufficiency of the
evidence supporting the trial court’s finding that termination of his parental rights is
in Eric’s best interest. With two termination grounds being unchallenged, we must
affirm the termination if it is in Eric’s best interest. See In re R.M.S., 2019 WL
2620955, at *1; In the Interest of N.L.D., 412 S.W.3d at 818.
In a legal sufficiency review, we review all the evidence in the light most
favorable to the finding to determine whether “a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002); In re M.S., 662 S.W.3d at 628. We assume that the factfinder
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resolved disputed facts in favor of its finding if a reasonable factfinder could, and
we disregard all evidence that a reasonable factfinder could have disbelieved or
found to have been incredible. In re J.F.C., 96 S.W.3d at 266; In re M.S., 662 S.W.3d
at 628. If no reasonable factfinder could form a firm belief or conviction that the
matter that must be proven is true, the evidence is legally insufficient. In re J.F.C.,
96 S.W.3d at 266; In re M.S., 662 S.W.3d at 628.
Under factual sufficiency review, we determine whether the evidence is such
that a factfinder could reasonably form a firm belief or conviction about the truth of
the Department’s allegations. In re J.F.C., 96 S.W.3d at 266 (citation omitted); In re
M.S., 662 S.W.3d at 628. We give due consideration to evidence the factfinder could
reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266;
In re M.S., 662 S.W.3d at 628. We consider whether disputed evidence is such that
a reasonable factfinder could not have resolved that disputed evidence in favor of its
ruling. In re J.F.C., 96 S.W.3d at 266; In re M.S., 662 S.W.3d at 628. If, considering
the entire record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction, the evidence is factually insufficient. In re
J.F.C., 96 S.W.3d at 266; In re M.S., 662 S.W.3d at 628.
Trial courts have wide latitude in determining a child’s best interest. See
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). There is a strong
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presumption that the best interest of a child is served by keeping the child with his
parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); see also Tex. Fam. Code Ann.
§ 153.131(b). Prompt and permanent placement of a child in a safe environment is
also presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a).
As for a child’s best interest, we consider a non-exhaustive list of factors: (1)
the child’s desires; (2) the child’s emotional and physical needs now and in the
future; (3) emotional and physical danger to the child now and in the future; (4)
parental abilities of the individuals seeking custody; (5) programs available to assist
these individuals to promote the best interest of the child; (6) plans for the child by
these individuals or by the agency seeking custody; (7) stability of the home or
proposed placement; (8) the parent’s acts or omissions which may suggest that the
existing parent-child relationship is not proper; and (9) any excuse for the acts or
omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In
re R.M.S., 2019 WL 2620955, at *2; see also Tex. Fam. Code Ann. § 263.307(b).
“No particular Holley factor is controlling, and evidence of one factor may be
sufficient to support a finding that termination is in a child’s best interest.” In re
R.M.S., 2019 WL 2620955, at *2 (citing In re A.P., 184 S.W.3d 410, 414 (Tex.
App.—Dallas 2006, no pet.)). The best interest determination may rely on direct or
circumstantial evidence, subjective facts, and the totality of the evidence. Id.15
In this case, the trial court heard evidence of Father’s prior CPS involvement
regarding a case with Eric’s siblings. Evidence was admitted showing that Father’s
rights were terminated in that case on an endangerment ground, among others. The
trial court also heard testimony that Father’s drug use was on ongoing issue, as he
continued to test positive. Salinas also testified that Father did not have stable
housing or proof of employment. The trial court heard testimony that the case never
progressed to reunification because Father and Mother continued to test positive for
drugs, Father had no stable housing or employment, and failed to do services.
Witnesses testified that Father failed to participate regularly in visits with
Eric, and Father seemed uncomfortable in his ability to comfort him. The trial court
heard testimony that Eric had not seen his Father enough to have a relationship with
him. Evidence showed that Father failed to complete the necessary services to obtain
Eric’s return, although the Department developed and went over the service plan
with Father, and he understood the requirements. Initially, Salinas testified that the
only task Father completed was a parenting class, but after being shown documents,
she agreed that he may have undergone a drug and alcohol assessment and
psychological assessment. Quinn likewise testified that Father understood the plan
but believed he performed only two tasks on the siblings’ plan, which he received
credit for in this case.
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Witnesses also explained that Eric had been with his foster family since
infancy and was “thriving” with them. Sutton testified that was the only family Eric
had known, and he referred to them as “Mommy and Daddy.” Additionally, the
foster parents had Eric in speech therapy, he could see his biological siblings, and
he participated in extracurricular activities. McOwen testified that the foster parents
wished to adopt Eric. There was no excuse offered for Father’s acts or omissions.
Finally, Salinas, Quinn, and Sutton each testified that it was in Eric’s best interest
for Father’s rights to be terminated.
Having reviewed all the evidence in the light most favorable to the trial court’s
best interest finding, we conclude a reasonable trier of fact could have formed a firm
belief or conviction that termination of Father’s parental rights was in Eric’s best
interest. See In re J.F.C., 96 S.W.3d at 266; In re M.S., 662 S.W.3d at 628. Thus, the
evidence was legally sufficient to support the trial court’s best interest finding. See In
re J.F.C., 96 S.W.3d at 266; In re M.S., 662 S.W.3d at 628. After reviewing the
entire record, we note that any disputed evidence that a reasonable factfinder could
not have credited in favor of the best interest finding is not so significant that a
factfinder could not reasonably have formed a firm belief or conviction. See In re
J.F.C., 96 S.W.3d at 266; In re M.S., 662 S.W.3d at 628. Therefore, we conclude the
evidence was factually sufficient to support the trial court’s best interest finding. See
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In re J.F.C., 96 S.W.3d at 266; In re M.S., 662 S.W.3d at 628. We overrule Father’s
second issue.
Having overruled Father’s issues, we affirm the trial court’s Order terminating
Father’s parental rights to Eric.
AFFIRMED.
W. SCOTT GOLEMON
Chief Justice
Submitted on September 30, 2024
Opinion Delivered October 10, 2024
Before Golemon, C.J., Wright and Chambers, JJ.
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