in the Interest of C.A. and L.A., Children

AFFIRMED and Opinion Filed November 12, 2018
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-18-00645-CV
IN THE INTEREST OF C.A. AND L.A., CHILDREN
On Appeal from the County Court At Law No. 1
Kaufman County, Texas
Trial Court Cause No. 95793-CC
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Whitehill
Opinion by Justice Whitehill
Appellant (Father) appeals from an order terminating his parental rights as to his daughter
L.A.1 He asserts two issues:
(i) the evidence is legally and factually insufficient to support the trial court’s
findings under Texas Family Code § 161.001(b)(1)(D) and (E) and
(ii) the evidence is legally and factually insufficient to support the trial court’s
finding that termination is in the child’s best interest.
We affirm, holding that (i) any error demonstrated in issue one is harmless because Father
does not challenge two other termination grounds found by the trial court and (ii) the evidence is
legally and factually sufficient to support the trial court’s best-interest finding.
1
The other child listed in the case style, C.A., is not Father’s child. C.A. and L.A. have the same mother, and Mother’s parental rights as to
both children were also terminated in this case. Mother did not appeal.
I. BACKGROUND
Father and Mother have one child born by them, L.A. Father also had a child, L.S., with a
different woman. And Mother had another child, C.A., with a different man, R.J.B.
In August 2016, the Texas Department of Family and Protective Services removed C.A.
and L.A. from Mother and Father’s custody and filed this case seeking to terminate both parents’
rights. The Department alleged that at the time C.A. was three years old and L.A. was six months
old.
Mother and Father answered. C.A.’s father never personally appeared, but an attorney was
appointed for him.
Temporary orders made the Department the children’s temporary managing conservator.
In May 2017, the parties signed a mediated settlement agreement imposing numerous requirements
on Mother and Father, such as paying child support and providing proof of employment. In June
2017, they signed a family service plan containing similar requirements.
C.A. and L.A. were placed with the same foster parents. In November 2017, the foster
parents intervened in the termination suit requesting (i) appointment as the children’s joint
managing conservators and (ii) termination of the children’s parents’ rights.
The case was tried without a jury. After one day of trial in January 2018, the court recessed
the trial so the parties could mediate the case. The trial resumed in April 2018 for four more days.
Mother’s affidavit of voluntary relinquishment of parental rights was admitted into evidence. She
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also testified that there was an agreement that she would still have visits with the children four
times a year. Many other witnesses testified at trial, but Father did not.
The trial court rendered judgment terminating Mother’s parental rights as to both children
and Father’s parental rights as to L.A. The judgment also gave Mother quarterly supervised
visitation with the children, consistent with her testimony. It appointed the Department as
permanent managing conservator for both children. It also appointed C.A.’s father as her
possessory conservator.
Father timely appealed.
II. ANALYSIS
A. Issue One: Was the evidence sufficient to support the trial court’s findings under
Family Code § 161.001(b)(1)(D) and (E)?
The trial court found by clear and convincing evidence that Father engaged in the conduct
described in Texas Family Code § 161.001(b)(1)(D), (E), (F), and (O). In Father’s first issue, he
argues that the evidence was legally and factually insufficient to support the findings under
§ 161.001(b)(1)(D) and (E).
However, only one § 161.001(b)(1) predicate finding (plus a best-interest finding) is
necessary to support a judgment terminating parental rights. See TEX. FAM. CODE
§ 161.001(b)(1)–(2). Father does not challenge the trial court’s findings under § 161.001(b)(1)(F)
and (O). Accordingly, any purported error in the court’s findings under § 161.001(b)(1)(D) and
(E), (which we do not address), is harmless, because the findings under § 161.001(b)(1)(F) and
(O) would remain to support the judgment. See In re A.H.J., No. 05-15-00501-CV, 2015 WL
5866256, at *9 (Tex. App.—Dallas Oct. 8, 2015, pet. denied) (mem. op.).
We overrule Father’s first issue.
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B. Issue Two: Was the evidence sufficient to support the trial court’s finding that
terminating Father’s parental rights was in L.A.’s best interest?
Father’s second issue argues that the trial court’s best-interest finding is supported by
legally and factually insufficient evidence. We disagree for the reasons stated below.
1. Standard of Review
Because terminating parental rights implicates fundamental interests, the clear and
convincing standard of proof applies in termination cases. In re A.B., 437 S.W.3d 498, 502 (Tex.
2014). “Clear and convincing evidence” is the measure or degree of proof that will produce in the
factfinder’s mind a firm belief or conviction as to the truth of the matter to be proved. FAM.
§ 101.007.
Our standards of review reflect the elevated burden at trial. In re N.T., 474 S.W.3d 465,
475 (Tex. App.—Dallas 2015, no pet.). Specifically, in both legal and factual sufficiency review,
we consider all the evidence. Id. Under both standards we defer to the factfinder’s determinations
as to witness credibility. Id.
In a legal sufficiency review, we credit evidence that supports the verdict if a reasonable
fact finder could have done so, and we disregard contrary evidence unless a reasonable fact finder
could not have done so. In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). However, we do not
disregard undisputed facts that do not support the verdict. Id. at 113. If no reasonable fact finder
could form a firm belief or conviction that the matter to be proven is true, the evidence is legally
insufficient. Id.
In a factual sufficiency review, we likewise determine whether the fact finder could
reasonably form a firm belief or conviction about the truth of the State’s allegations. In re A.B.,
437 S.W.3d at 502. “If, in light of 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, then the evidence is factually insufficient.”
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Id. at 503 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We must undertake an exacting
review of the entire record with a healthy regard for the constitutional interests at stake. Id.
However, our review “must not be so rigorous that the only factfindings that could withstand
review are those established beyond a reasonable doubt.” In re C.H., 89 S.W.3d 17, 26 (Tex.
2002).
2. Applicable Law
The trial court may terminate the parent–child relationship if the factfinder finds by clear
and convincing evidence that (i) the parent committed one or more acts or omissions enumerated
in family code § 161.001(b)(1) and (ii) termination is in the child’s best interest. FAM.
§ 161.001(b).
Although there is a strong presumption that maintaining the parent–child relationship
serves the child’s best interest, there is also a presumption that promptly and permanently placing
the child in a safe environment is in the child’s best interest. In re D.W., 445 S.W.3d 913, 925
(Tex. App.—Dallas 2014, pet. denied).
The supreme court has identified a nonexclusive list of factors that may be relevant to a
best-interest determination, depending on the facts: (i) the child’s desires, (ii) the child’s current
and future emotional and physical needs, (iii) current and future emotional and physical dangers
to the child, (iv) the parental abilities of those seeking custody, (v) the programs available to help
those individuals promote the child’s best interest, (vi) those individuals’ plans for the child, (vii)
the home’s or proposed placement’s stability, (viii) the parent’s acts or omissions indicating that
the existing parent–child relationship is not a proper one, and (ix) any excuse for the parent’s acts
or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). An absence of evidence of
some Holley factors does not preclude a finding that termination is in the child’s best interest,
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particularly if undisputed evidence shows that the parental relationship endangered the child’s
safety. In re N.T., 474 S.W.3d at 477.
The Family Code also identifies several factors relevant to a best interest analysis. FAM.
§ 263.307(b).
3. The Evidence
There is evidence of these facts:
a. Father’s Early Life
Father was born in 1988.
Father’s therapist testified that he reported having a “terrible upbringing.” From about the
age of thirteen or fourteen, Father was largely away from “his house” and had “kind of an
alternative family” with some older people in the community from whom he learned “a lot of
negative stuff and also some criminal thinking.”
b. Summary of Father’s Domestic Relationships
Because the facts involve three different domestic relationships and several different
children resulting from those relationships, we provide this brief summary to identify the people
most important to our analysis.
In 2010, Father married a woman we refer to as “Ex-wife” because they eventually
divorced. In 2011, Father and Ex-wife had a daughter, L.S., who is the subject of a separate action
in Dallas County. Father and Ex-wife separated in August 2014, but they did not divorce until
sometime in 2017.
Father and Mother began a relationship in or about 2014. Mother already had a daughter,
C.A., from a prior relationship. C.A. was born in July 2013.
Father and Mother’s daughter, L.A., was born in January 2016. Mother and Father ended
their relationship in roughly mid-2016.
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At some point, apparently in 2017, Father began a relationship with a person we refer to as
“Girlfriend.” She had three minor children, two boys and a girl, each with a different father. Father
and Girlfriend were still dating during trial.
c. Father’s Relationships with Ex-wife and L.S.
(1) Ex-wife’s Testimony
Ex-wife testified to the following facts:
Ex-wife and Father married in March 2010 when she was eighteen and Father was around
twenty-three. Before they were together, Father used cocaine, methamphetamine, “pills,” and
marijuana. About six or seven months into their marriage, Father “tried to get [Ex-wife] to be
okay with him using drugs,” but she told him no. To her knowledge, Father did not use drugs
during their marriage.
About a year after they married, there was an incident in which they were “just kind of
wrestling around,” and when she stopped, Father held her down and started biting the insides of
her thighs “really hard.” She told him to stop, but he bit her six or seven times. He bit her so badly
that she “couldn’t walk right for a couple of weeks.”
Ex-wife became pregnant with their daughter, L.S., in early 2011. During that summer,
when she was about five months pregnant, she and Father were arguing about something. Father
first grabbed her tightly around her stomach, then picked her up by the throat and slammed her
down on the porch.
L.S. was born in December 2011. Father did not help Ex-wife with L.S.’s basic needs aside
from “chang[ing] a couple of diapers.” Father made threats to take L.S. away from Ex-wife
starting when L.S. was about three months old. In mid-2012, Father and Ex-wife separated after
an argument. Father threatened to take L.S. to Tennessee, but the police intervened, and Ex-wife
took L.S. and stayed with someone else temporarily.
–7–
There was another incident of domestic violence around Christmas 2013. About a week
before Christmas, Father learned that Ex-wife had cheated on him. On Christmas, Father started
screaming at her, and he started pushing her when she tried to get away. She tried to call the police,
but he grabbed her phone. Father “us[ed] his body” to push Ex-wife around, and two-year-old
L.S. cried and followed Ex-wife around. Ex-wife got to the kitchen door, and Father shoved her
“really hard.” There were stairs outside the door, but she hit the banister and managed to catch
herself. L.S. was still inside the apartment. Ex-wife then called the police, and Father was arrested.
Father bonded out of jail, returned to the apartment, and took L.S. away overnight. Ex-wife later
found out that Father left L.S. with his mother that night.
Father and Ex-wife separated in August 2014. A court case started in October, and Ex-
wife had custody of L.S. on weekends. Ex-wife would pick L.S. up at a “court-ordered visitation
spot” because Father refused to reveal where he lived. L.S. would be upset every time Ex-wife
picked her up, but she would calm down as soon as Father left.
When Father started his relationship with Mother, they conditioned L.S. to not want to be
with Ex-wife. They recorded themselves taking L.S. to a store, holding a toy behind their backs,
and telling L.S. that she had to go visit Ex-wife and she couldn’t have the toy until she got back.
L.S.’s development also reversed after Father and Ex-wife separated. L.S. was fully potty-
trained at the time, but then it “went completely backwards” and Ex-wife had to put L.S. back in
diapers. L.S. seemed lighter in weight, and she was covered with red insect bites every time Ex-
wife saw her. L.S. also started throwing tantrums when she wasn’t given a tablet or a phone to
play with, and she would have a meltdown in a store when she wanted a toy she couldn’t have.
She was mean to other children, she wouldn’t share, and she would scream and yell at Ex-wife
when she was frustrated.
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Starting in July 2015, Father had sole custody of L.S., apparently because Ex-wife failed
to appear at a hearing. During the period of sole custody, L.S. had six urinary tract infections.
Dallas County CPS removed L.S. from Father in August 2016,2 and Ex-wife became L.S.’s
primary caregiver in October 2016.
In October 2017, Ex-wife was granted sole conservatorship, with Father having supervised
visitation twice a month.
As of April 2018, Father had not visited L.S. since October 2017. Ex-wife testified that it
would have been in L.S.’s best interest to terminate Father’s parental rights. She further said that:
• In 2014, after she left Father, he threatened to show up at her residence, take
L.S., and disappear. She obtained a criminal trespass warning against him
so that he could not go on the road where she lived.
• In 2015, Father and Mother called Ex-wife’s place of employment and tried
to get information such as her Social Security number and her work
schedule.
• Also in 2015, Father called a hospital and threatened to blow it up because
it wouldn’t disclose to him certain medical records about L.S. The hospital
made a police report about the incident.
• Mother told Ex-wife that Mother and Father were using methamphetamine
together.
• Ex-wife does not feel safe when Father is with L.S. even in a supervised
environment because he doesn’t like to follow rules or obey the law.
• After visits with Father, L.S. engaged in behaviors such as (i) singing “cuss
words,” (ii) screaming, yelling, and cursing at Ex-wife, (iii) acting pushy
and bossy, and (iv) saying she wanted to go to Father because he told her
he would give her toys.
• When Ex-wife and Father were together, he was always angry and did not
deal with stress well. She did not see him make any changes to fix those
problems, and she did not see him as someone who could change and grow.
• When Father doesn’t get his way, he threatens, manipulates, gets angry, and
yells and curses at people.
2
As we discuss below, another witness testified that L.S. was removed based on neglectful supervision after Father was found unconscious
in a ditch.
–9–
• Father has more than once threatened to kill Ex-wife. He never made those
threats directly to Ex-wife, but he made them to other people. These threats
occurred in 2016, after CPS removed L.S.
• Ex-wife changed her telephone number four times because of Father’s
harassment.
• At one point Father was banned from L.S.’s daycare.
Ex-wife’s testimony about Father was not entirely negative. She acknowledged that Father
didn’t hurt L.S. while Ex-wife and Father were together, aside from the occasional spanking. She
believed that Father loves L.S. “[t]o a degree” and “has some kind of connection with her,” but
she also feels that part of the reason he wants to keep her is money.
Ex-wife also admitted that she smoked marijuana in 2015 and 2016 after she and Father
had separated. She even smoked marijuana while she was pregnant with a subsequent child. She
also admitted violating court orders regarding the time and place of her possession of L.S. during
that case.
Nevertheless, it was the trial court’s prerogative to assess her credibility, and it was entitled
to credit her testimony favorable to the judgment. See In re M.A.M., 346 S.W.3d 10, 14 (Tex.
App.—Dallas 2011, pet. denied) (“The trial court, as the fact finder in this case, is the sole judge
of the credibility of the witnesses and the weight to be given their testimony.”).
(2) Other Witnesses’ Testimony
Jasmine Brooks, who was Father’s case worker in the Dallas CPS case regarding L.S.,
testified that:
L.S. was removed from Father’s custody in August 2016 for neglectful supervision. Father
was found unconscious in a ditch while a grandparent was watching L.S. At first the Department
believed he had attempted suicide, but an investigation showed reason to believe he was under the
influence of drugs. And Brooks believed that Father was under the influence of amphetamine and
methamphetamine.
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Brooks had her first contact with Father at a hearing. Father appeared ungroomed,
unkempt, and agitated at the hearing.
During the Dallas CPS case, Father had supervised visits with L.S. at a Department office
in Dallas. The monitor had to call Brooks in two or three times because of problems during
Father’s visits such as cellphone use (contrary to the rules), inappropriate music, pulling L.S.’s
hair, covering her mouth and nose, and generally not cooperating with the visitation rules. Father
laughed when he pulled L.S.’s hair and when he covered her mouth and nose. He also licked L.S.’s
cheek multiple times, which Brooks did not consider normal parental behavior. Father’s conduct
was inappropriate in that it could teach L.S. that Father’s actions were appropriate behavior.
Father was argumentative with Brooks when she attempted to redirect his behavior. In
Brooks’s words, “[h]is lack of maturity was alarming” in his responses to her efforts to redirect
his behavior. Based on Father’s behavior during visits, Brooks concluded that he did not have an
appropriate parent–child relationship with L.S.
Furthermore, Father made threats against a Kaufman County case worker involved in this
case and Ex-wife was afraid of Father. Brooks believed that Father would fulfill his threats to
physically harm Ex-wife and the Kaufman County case worker. Father became upset easily when
Brooks would explain why he couldn’t do certain things. He did not have appropriate coping skills
to handle his anger. Brooks believed that Father would become aggressive and violent if a child
consistently refused to listen to him. She believed that the term “[e]ndangerment” fits Father.
On the other hand, Brooks believed that Father loves L.S., and she did see some visits in
which Father was appropriate with L.S. He also showed concern for L.S.’s well-being in his
conversations with Brooks. Brooks explained that the Department decided not to seek to terminate
Father’s rights as to L.S. “due to legal grounds in Dallas and just what Dallas’ standards for
termination are.”
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Mother testified that Father threatened “[h]is daughter,” apparently meaning L.S., “with a
belt all the time.”
Father’s therapist testified that it would be abusive for a parent to threaten “almost on a
daily basis to hit or beat the child with a belt as discipline.”
d. Father’s Relationships with Mother, C.A., and L.A.
(1) Mother and Father’s Relationship
Mother testified to the following facts:
She and Father started a relationship in or about 2014. Mother already had a daughter,
C.A., who had been born in July 2013. Mother gave birth to her and Father’s daughter, L.A., in
January 2016.
When L.A. was three weeks old, Father threatened to take her away from Mother, and he
did in fact take her away until Mother could get a writ of attachment requiring him to give L.A.
back to her. When Father took L.A. away, he did not have a car seat for her. Instead, “[h]e just
put her in the back seat and took off.”
In about March 2016, Mother and Father used methamphetamine together at home. They
were downstairs, and the girls were upstairs with a monitor. In roughly the same time frame, there
was an incident in which Father threatened to kill Mother, and she called the police. No arrest
resulted from that incident.
Police records were admitted into evidence regarding incidents during the summer of 2016.
For example, in July 2016, police were dispatched to a Garland residence for a family disturbance.
According to the report, Mother and Father were arguing about her wanting to move out and take
L.A. with her. Both Mother and Father said that there had been violence in the past “by both
subjects” but none that day.
–12–
Two days later, the police responded to a report that Father was missing and was having
suicidal thoughts, perhaps because Mother had left with L.A. Further notes indicate that he was
found in another county the next day and “was believed to be on some sort of drug.”
Finally, a third report indicates that on August 1, Mother reported that Father had stolen
her birth certificate and Social Security card “after they broke up their relationship.”
CPS removed both children, C.A. and L.A., from Mother and Father’s home in early
August 2016.
(2) The Children’s Removal from Mother and Father’s Care
A family service plan admitted into evidence recited that on August 3, 3016, the
Department received a report that C.A. and L.A. were being abused and neglected. The report
cited (i) concerns of drug usage by Mother and Father and (ii) Father’s threats to harm Mother and
take L.A. out of state.
Department investigator Tyler Redman testified that:
On August 3, 2016, he was assigned C.A. and L.A.’s case. The next day, he met with
Mother at a friend’s house in Kaufman County. Mother admitted to experimenting with various
drugs and to using methamphetamine three weeks earlier. She said the children were upstairs in
bed while she was using methamphetamine, which Redman considered endangering conduct
because it would have been difficult for her to respond to the children’s needs. Mother also said
that Father (i) had threatened to kill her, the children, and other family members, (ii) had threatened
to run away with one or both children, and (iii) was verbally and emotionally abusive to her.
Redman observed the children and had no concerns about their appearance, although they
were found to have lice.
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Mother took an oral swab drug test and tested positive for amphetamine and
methamphetamine. She then admitted using methamphetamine two or three days earlier. And she
said that she and Father used methamphetamine together “a couple of times per week.”
Redman investigated placing the children with some of Mother’s relatives. But those
options did not work out because Father had made threats against those relatives in the past and he
knew where they lived. So the children went into foster care.
Father called Redman on August 8, and he was “very erratic,” and “didn’t want to listen to
anything over the phone.” Father did “a lot of cussing” and “was really mad that he hadn’t been
contacted yet.”
A few days later, Father and Redman met in person. Father admitted some past marijuana
use, including once within the previous two weeks, but he denied Mother’s statements that they
had smoked together. He also denied ever threatening Mother.
Redman obtained the results of a drug test Father took on August 8 for the Dallas County
CPS case. Father tested positive for marijuana, amphetamine, and methamphetamine. The
marijuana result indicated recreational usage, and the methamphetamine level was “at a concerning
level” indicating daily usage. In Redman’s experience, someone using methamphetamine daily
cannot be a “successful protective parent” because the drug could severely affect their decision-
making and pose a huge risk to young children.
Rhonda Davis was the Kaufman County CPS case worker on C.A. and L.A.’s case for most
of its duration. She testified that the children were behind on their immunizations, had lice, and
were in a state of neglect when CPS removed them from Mother and Father. C.A. was also very
behind socially.
(3) Father’s Conduct During the Progress of This Case
Davis testified that:
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Father and Mother were a couple when the case started in August 2016, and they were
together off and on until December 2016. Their relationship was volatile. Mother depended
emotionally on Father, and he was very controlling.
In August 2016, Father tested positive in an oral swab drug test. When Davis refused to
retest him, Father asked to speak to Davis’s supervisor. When she came out and met with him, he
was belligerent and combative, and he “was cussing to the point to where we had to terminate his
visit and . . . a security guard escorted him out.”
In September 2016, Father signed a family service plan requiring him to complete various
services, including drug treatment, a batterers intervention program, individual therapy, anger
management classes, a psychological evaluation, parenting classes, and NA/AA attendance three
times per week. The plan also required him not to “alter his hair in any way including, but not
limited to, cutting, dying, or perming the hair.” This requirement was so that Father’s drug screens
would be accurate. The plan also gave Father weekly supervised visits with L.A. at the Kaufman
CPS office.
In October 2016, Father was taken to a mental health facility because of a suicide attempt.
Davis’s testimony was corroborated by Father’s medical records, which were admitted into
evidence. According to those records:
This is the first admission to our facility for this 27-year-old separated Caucasian
male with a long-standing history of methamphetamine and alcohol abuse. He
presented complaining of worsening mood and depression related to numerous
stressors in his life, voicing suicidal thoughts . . . . He also voiced homicidal
thoughts towards his ex-wife and her fiance as well as some CPS workers. He
describes no intent, but says he has access to weapons. He has a history of previous
suicide attempts. He has a history of some assaultive behaviors in the past. . . . He
has several failed attempts at sobriety. Admits to daily use of alcohol recently as
well as episodic use of methamphetamine and occasional cocaine.
Davis testified that she and Father had some “constructive, productive conversations” when he
was on medication after this hospital stay, but this ended when he stopped taking his medications.
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On another occasion in October 2016, Davis “witnessed over the phone” Father being
verbally abusive to Mother. Father would not allow Davis to talk to Mother, and Davis became
so alarmed that she called the police and had them do a welfare check “to make sure [Mother] was
okay.”
Davis testified that Father took an oral swab test that came back positive for cocaine. She
believed that this happened in October 2016. Father denied using cocaine, but Davis later heard
that he told others that he had accidentally used it. In November 2016, Father took a hair drug test
that was positive for amphetamine and methamphetamine. Again, he denied any drug usage. On
another occasion in late 2016, Father told Davis that he had drunk an entire bottle of tequila and
passed out in a friend’s yard.
On December 2, 2016, there was an incident that led to Father’s hospitalization and
eventual arrest. Mother later reported to the police that on that date, Father sought to have sex
with her. When she refused, he became angry and verbally abusive. She eventually slapped him,
which led to a struggle that culminated in his choking her and saying, “I will fucking kill you and
your family.” He let her go after someone else who lived at the same residence walked in. Mother
then went to a women’s shelter.
According to a different police report, some police officers were sent to a residence in
Mesquite that afternoon to respond to a report that Father was there and was suicidal. Father had
barricaded himself in a bedroom, and when the police arrived Father “stated on multiple occasions
that he had nothing to live for and if he came out of the room that he would have a weapon.” He
surrendered after about three hours and was taken to a hospital.
Father’s hospital records show that (i) he said “he did not want to go on living anymore”
and (ii) he was uncooperative, agitated, and angry. He acknowledged that he “was using
methamphetamine in binges up until 2 weeks ago.” The records further said:
–16–
He is suicidal with multiple plans. He had threatened to cut his wrist. He punched
his hand through the windshield of his truck while on the phone with CPS. He
demonstrates risk of self-harm and needs inpatient stabilization. . . . Says because
CPS would not tell him where his ex-wife is, in [sic] which rehab she is in, he is
not going to cooperate with CPS anymore and not going to cooperate with
treatment.
His urine drug screen was negative. During Father’s hospitalization, he gradually engaged and
stabilized, and he was discharged on December 20, 2016. His discharge diagnoses included
“Amphetamine dependence” and “Bipolar disorder, not otherwise specified.”
Records showed that Father was arrested in mid-January 2017 for vehicle registration and
insurance violations. The records indicate that Father “banged his head against the rear passenger
window” as he was being taken to the Kaufman County Law Enforcement Center.
Also, in the January–February time frame, Father violated his family service plan by
coloring his hair and shaving much of it off. Davis testified that coloring the hair affects the
Department’s ability to drug test, and clients commonly alter their hair to manipulate the
Department’s ability to assess their drug usage. Moreover, after Father changed his hair, Davis
did not have any positive drug tests from him. She found this very concerning because she had
never seen a client go from the drug levels Father had previously shown to “clean on everything.”
She believed that Father manipulated the drug tests after November 2016 to remain negative.
Father points out, however, that some of his negative hair follicle drug tests used hair from other
parts of his body, such as his leg and arm.
Mother eventually reported the December 2, 2016 violence to the police, and Father was
arrested in February 2017. A June 2017 order of deferred adjudication related to the December 2
incident was admitted into evidence. It showed that Father pled guilty to a third-degree felony of
“assault family violence” under Penal Code § 22.01(b)(2)(B) and that he was placed on community
supervision for three years.
–17–
Davis testified that Father remained very combative and very threatening with her as the
case went on. If he did not get what he wanted, “he would threaten, cuss. He acted almost like a
child that didn’t get [his] way on something.” In May 2017, Davis stopped being Father’s case
worker, but she remained the case worker for Mother and the children. Father wanted another case
worker, and he had made threats against Davis and her husband. Davis sought a criminal trespass
warning against Father because a vehicle strongly resembling his had been seen parked near her
house. Father also threatened her at the office; according to Davis, he said “[h]e was going to go
get his people and his 9 millimeter and come back and give me what I deserved.”
Justin Ryan, who became Father’s case worker in late May or early June 2017, testified to
the following facts:
Ryan communicated with Father frequently about the services Father needed to complete.
If they were communicating face-to-face, Father’s attitude was “very aloof” and “just kind of
blowing you off.” But if they were communicating over the phone, it was usually about Father’s
wanting the Department’s permanency goal changed, and Father “would be very belligerent, very
rude and demanding about, well, I’m not going to do anything until you do this.” Ryan’s opinion
based on feedback from service providers and his own experience was that Father did not take the
case very seriously.
Like Davis, Ryan questioned Father’s sobriety because of the discrepancy between his
positive drug test in November 2016 and his completely negative test roughly ninety days later.
He was concerned that Father was somehow altering his drug tests.
Ryan testified that Father violated court orders, his family service plan, and a mediated
settlement agreement. For example:
• Dallas CPS and the Dallas Police Department confirmed that Father acted
as a caregiver of Girlfriend’s children, in violation of court order.
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• Father did not give a social history, as required by the mediated settlement
agreement.
• Father did not obtain a psychiatric evaluation, as required by the family
service plan.
• Father did not pay child support as required by the mediated settlement
agreement and the family service plan.
• Father did not provide monthly pay stubs as required by the family service
plan.
• Father did not provide proof of stable housing as required by the mediated
settlement agreement.
• Father did not attend NA/AA meetings as required by the family services
plan and court order.
Additionally, although Father did not test positive for methamphetamine again after
November 2016, he tested positive for codeine twice. The first time was in summer 2017, and he
had a doctor’s note or prescription explaining it. He tested positive for codeine again in March
2018, during the trial’s recess. No prescription or other documentation to explain that positive test
was admitted at trial, but the record indicates that on the last day of trial he produced to the
Department a pill bottle labeled with the prescription information.
Ryan testified that he had several concerns about Father: (i) his history raised a concern
whether he would be able to provide L.A. a safe and stable home free from abuse, neglect, and
violence, (ii) his failure to pay child support or provide proof of employment made it impossible
to know whether he can provide stable housing and meet L.A.’s financial needs; (iii) Ryan did not
believe Father could be a safe person around his children outside the Department’s supervised
environment because he is belligerent when he is not there; (iv) Father has not shown an ability to
provide for his children long-term; (v) Ryan was still concerned that Father had not addressed the
drug issues that were present at the beginning of the case, based on suspicions regarding his
negative drug tests, his recent positive test for codeine, and his non-attendance at NA/AA
meetings; (vi) Father’s honesty was “a huge issue” throughout the case; and (vii) although Father
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was discharged from his mental-health hospitalizations with prescriptions, Ryan did not know
whether Father had followed up with them, and Father stated “he doesn’t want to be on
medication.” However, Ryan also acknowledged that Father was kind and loving with L.A. during
his supervised visits.
(4) Evidence About C.A.
There was limited evidence about Mother’s older child, C.A., and Father’s relationship
with her. Molly Milligan, who was the case manager for the foster family C.A. and L.A. were
placed with, testified that C.A. was three years old when she was placed with the foster family. At
that time, C.A. had an injury near her eye, her eyes were “kind of sunken,” she was very small and
pale, and she appeared underweight. Her speech was extremely limited. But by the time of trial,
she had caught up with her classmates verbally.
The court-appointed special advocate for the children, Toni Garcia, also testified that C.A.
was very fearful of any new person she might be introduced to. She attributed this to exposure to
domestic violence.
Mother testified that after the children were removed, C.A. saw Father at a CPS facility on
one occasion. Mother further said, “She was scared and she ended up peeing in her pants, I
believe.” Milligan testified that C.A. experienced “night terrors” after she saw Father. According
to Milligan, C.A. “would be screaming, crying, completely inconsolable.”
Davis also witnessed an encounter between Father and C.A. after the removal. According
to Davis:
Before [C.A. saw Father] she was playing, riding a tricycle around the office. When
she saw him, she was very clingy, she would not let me out of her sight. She would
not even drive her tricycle on that end of the building. She avoided it completely.
Davis also said that C.A. cried when she saw Father.
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e. Father’s Relationship with Girlfriend
Girlfriend testified to the following facts:
Girlfriend had three minor children, each by a different father. She was never married to
any of those men. The father of her first child used marijuana. The father of her second child was
abusive and used to choke, hit, and kick her. She didn’t report him because she was afraid of him.
The father of her third child was a drug dealer, and he also physically abused her. Her children
were in the residence when he abused her, but she didn’t report it because he threatened to kill her.
The father of her second child was in jail, but the father of her third child was “on probation” at
the time of trial.
CPS got involved in her life in January 2017 and placed her children with her grandfather.
Pursuant to a service plan, she went to Homeward Bound, a rehab center for drug users, because
she using methamphetamine.
She and Father met at Homeward Bound and started living together in June 2017. They
became boyfriend and girlfriend around Christmas 2017.
Girlfriend testified that the last time she used methamphetamine was March 17, 2018,
which was about six weeks before the day she testified in court. But she also testified that she and
Father had been “living a clean and sober lifestyle” since December 2017. Father had a job that
he had held for four or five months. He was never physically violent or emotionally abusive with
her and never threatened her. Girlfriend also said that Father loves his children and “his child”
(apparently L.A.) loves him.
Other evidence showed that Girlfriend was leasing an apartment in Dallas. Apartment
manager Kelly Garber testified that she became aware that Father was staying with Girlfriend in
roughly late 2017. At that time, other residents started complaining about loud noise, screaming,
excessive smoking, and “[j]ust a lot of people hanging out in front of the unit basically, different
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people screaming.” Because of the complaints, Brown’s lease was not going to be renewed when
it expired at the end of June 2018. Father applied to be a resident, but he was rejected because he
“had some court evictions on his record.”
Father’s therapist was concerned when she learned that Father was seeing someone he met
in substance abuse treatment. She suggested that he not see Girlfriend “because after substance
abuse treatment, you really shouldn’t hook up with anybody for at least a year.” It is not safe
because recovery is very difficult and “[y]ou don’t just all of the sudden not use simply because
you went to substance abuse treatment.” Although Father said that he and Girlfriend were keeping
each other from using drugs, the therapist “still did not think it was a good idea.”
Case workers Davis and Ryan both testified that Father lied to the Department that he was
not in a relationship with Girlfriend. Davis also testified that Father sometimes brought Girlfriend
to his supervised visits with L.A., but Girlfriend usually didn’t engage with L.A. and there was no
bond between them.
f. Other Evidence
(1) Pam Davis
Pam Davis testified as follows:
She is a Battering Intervention Prevention Program (BIPP) facilitator. She provided BIPP
services to Father for at least three to four months of a twenty-four-week class. Father was
“extremely challenging. Every class, he was challenging.” In her opinion, Father did not learn
from the program. According to her,
We knew [Father] as the way he was in every class, his demeanor, his personality
never changed. He talked about knowing people in high places, cursing someone
out, having guns, things of that nature. He talked about that regularly.
She also said, “Every time he talked[,] and I’m not even exaggerating, it was harming someone,
cursing someone out, knowing someone, to get someone to hurt someone else.” His failure to
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show any change over the course of the program was “[e]xtremely abnormal.” Although she never
felt physically threatened by Father, others who taught the class reported that “they felt threatened
in some form or fashion.” She thought he was credible when he said that he was going to hurt
someone, that he was going to get someone to hurt someone else, or that he had guns.
Father technically completed the class, but facilitator Davis felt that he viewed it as an item
on a checklist that he had to do. She never saw Father use the tools he was taught to control his
anger. She never saw Father interact with children, but she thought it was possible he would pose
a danger to a small child if he were a primary caregiver. Based on her observations, Father was
not safer to be around after the BIPP class than he was before.
(2) June Groom
Groom testified that:
She was the executive director of a residential home for mothers and children in crisis.
Mother was a client at the shelter. Mother told Groom that Father had physically and mentally
abused her and that she was extremely afraid of him. Groom found Mother to be a credible victim
of domestic violence. Based on her interactions with Mother and CPS, Groom thought it would
not be in L.A.’s best interest to remain with Father.
(3) Lois Vaillancourt
Vaillancourt testified to the following facts:
She’s a licensed professional counselor and was Father’s therapist from roughly March to
October 2017. Her goals for him included anger management, stress management, and creating a
drug-free environment for his children. At first, Father “was not willing to engage in therapy and
he was ridiculously silly” to the point that Vaillancourt discharged him from treatment. She
thought he didn’t want to be there and wasn’t taking the process seriously. But later he came back
and was more willing to do the work, and she worked with him. Even then, he still acted silly, and
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she had to correct his behavior. Vaillancourt thought he made progress and came to a point of
maximum benefit, and she “successfully discharged him from treatment.” But even when she
discharged him, she did so with a recommendation that he get a psychiatric evaluation.
Vaillancourt believed that Father loves his children dearly, but based on reports she
received she thought that his way of playing with them was “silly and not in good taste and not
healthy for little girls.” In particular there was a report that during one visit with his daughter
(apparently L.S.), Father first put a baby doll on a stove as if to burn it “and then wanted to put the
little girl on the stove.” Vaillancourt thought that was “completely inappropriate,” but she believed
that Father thought it was funny. She also got a report that Father licked L.S.’s face. Vaillancourt
didn’t think that these reports were enough information for her to recommend that Father would
not be an appropriate caregiver for his child, but she thought it was enough for her to say that he
probably needs some parenting classes and childhood developmental classes. Nothing she learned
during the counseling indicated to her that Father would be a physical danger to his child.
(4) Molly Milligan
Milligan testified that:
She was the case worker for the foster family in this case. She was present in court for a
number of proceedings in the case. In late 2017, during a court proceeding, she overheard Father
talking to someone she assumed was his girlfriend. She heard Father say that he was going to run
his case worker, Justin Ryan, off the road and splatter him across the highway. Father also said
that Ryan deserved to die for what he had done to Father and that he hoped his wife died too.
Milligan also heard Father call the judge a “retard” and say that he shouldn’t have to stand up for
him because he didn’t respect him.
(5) Pamela Tovar
Tovar testified as follows:
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She is the Department’s legal liaison for Kaufman County. She opined that the Department
had presented enough evidence to support terminating Father’s parental rights. She named several
factors that went into her opinion: (i) Father’s untreated mental health issues, (ii) his refusal to
comply with simple requirements like providing his address, (iii) his abusive behavior in
relationships, even with his children, (iv) his instability, (v) his failure to show the ability to
provide financially for his children, and (vi) his drug use. She added that L.A.’s best interest was
to continue staying where she was, with her sister, where they had been for the last two years.
(6) Toni Garcia
Garcia testified that:
She is the children’s court-appointed special advocate. The children have been with the
same foster parents since the case’s beginning. This stability has benefited the children. C.A., in
particular, has flourished in the foster parents’ care, but L.A. is also thriving. The foster parents
spend a lot of time and attention on the children, engage in family activities with them, take them
to playgrounds, encourage them to play with each other, and let them engage with other
appropriately aged children.
The foster parents intend to adopt C.A. and L.A. if they are available for adoption. They
are currently able to meet the children’s needs. In Garcia’s view, the foster parents “go above and
beyond.”3
Garcia also said that Father’s rights should be terminated and that he should have no access
to L.A. She cited his “desire to not address his mental health issues,” his attempts at suicide or
self-harm, his history of domestic violence, and his CPS history with L.S. She also opined that he
presents an emotional danger to L.A. based on his relationships with Mother and Ex-wife and on
3
Case worker Davis also testified to the foster home’s stability: “The home they are in now is stable. The parents take them to be with other
children. They have a normal, stable childhood, a routine that they know what’s happening at what particular time of the day. They get up, they
go to school, they come home and have dinner. Weekends, they go to see family, they go play.”
–25–
the threatening behavior he displayed throughout the course of this case. Garcia acknowledged
that Father had an appropriate relationship with L.A. during the supervised visits that she observed,
but she was concerned that he would be different outside a controlled environment based on his
problems and Girlfriend’s “active CPS history.”
(7) Michael Apodaca
Father called his friend Michael Apodaca as a witness. Apodaca testified that:
He has known Father since 2013. He saw Father act as L.S.’s sole provider for a period of
years. He was never concerned that Father was not caring for L.S. properly. Father took care of
her, and she was “[v]ery clean and happy.” Father has always been able to pay his bills and take
care of himself. When Apodaca testified, Father had been working at a welding company for at
least five or six months. Based on what he saw of Father and L.S., Apodaca thought Father could
adequately care for a child. But he acknowledged that he did not know Father was using
methamphetamine, that he had attempted suicide, or that he had been hospitalized.
It was the trial judge’s prerogative to assess the weight to give each witness’s testimony.
See In re J.D., 436 S.W.3d 105, 116 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (trial court
as factfinder was free to “decide what weight to give the witnesses’ testimony”). The judge could
reasonably discount Apodaca’s testimony and instead credit the testimony of witnesses who were
better acquainted with Father’s problems.
4. Applying the Law to the Facts
We next apply the Holley factors to the evidence, referring also to the statutory best interest
factors as they may be pertinent to this case.
a. The Child’s Desires
L.A. was two years old when this case was tried, so she could not express her desires. In
any event, a child’s preference should not be considered absent a showing of sufficient maturity.
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In re D.W., 445 S.W.3d 913, 926 (Tex. App.—Dallas 2014, pet. denied). This factor is not relevant
in this case.
b. The Child’s Needs and the Parent’s Parental Abilities
These factors are related so we consider them together. See id.
The Department presented ample evidence that Father’s parental abilities are poor and that
he would not be able to meet L.A.’s needs. The evidence permitted the trial court to conclude that:
• Father assaulted Ex-wife in the presence of their two-year-old daughter L.S.
• He tormented L.S. and tried to turn her against Ex-wife by withholding toys
from her before Ex-wife’s visitation periods.
• L.S. had six urinary tract infections while she was in Father’s sole custody.
• Father’s behavior with L.S. during supervised visits was inappropriate. He
did not exercise his visitation rights with L.S. at all for several months
leading up to the trial in this case.
• He frequently threatened to beat one of his children—apparently L.S.—with
a belt.
• He once drove away with L.A. without a car seat when she was only a few
weeks old.
• He and Mother used methamphetamine together almost every day. On at
least one occasion, they used it in a downstairs area of their residence while
C.A. and L.A. were upstairs with a monitor.
• C.A. and L.A. were behind on their immunizations, had lice, and were in a
state of neglect when removed them from Mother and Father. C.A. was
also behind socially.
• C.A. had a strong, terrified reaction to Father when she encountered him
after she and L.A. had been removed from his and Mother’s care.
• Father failed to pay child support.
• Father had untreated mental health problems.
On the other hand, there was also evidence that Father was appropriate with L.A. during
supervised visits and that he had maintained employment for several months leading up to trial.
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Abusive conduct and substance abuse are relevant to a parent’s parental abilities and ability
to care for a child’s needs. See FAM. § 263.307(b)(7), (8); see also In re K.C., 219 S.W.3d 924,
927 (Tex. App.—Dallas 2007, no pet.) (“The jury can give ‘great weight’ to the ‘significant factor’
of drug-related conduct.”). Additionally, untreated mental health problems undermine a parent’s
parental abilities and his ability to care for a child’s emotional and physical needs. In re A.G., No.
05-15-01298-CV, 2016 WL 3225894, at *6–7 (Tex. App.—Dallas June 10, 2016, pet. denied)
(mem. op.).
Considering all the relevant evidence, the trial court could reasonably conclude that these
factors favored termination as being in L.A.’s best interest.
c. Danger to the Child
The Department adduced substantial evidence permitting the trial court to conclude that
Father presented emotional and physical dangers to L.A. if his parental rights were not terminated.
The evidence supported the following facts:
• Father had been a frequent methamphetamine user and was currently in a
relationship with Girlfriend, who used methamphetamine shortly before the
trial in this case. He also used methamphetamine with Mother while they
were supposed to be caring for C.A. and L.A.
• Father committed acts of domestic violence against both Ex-wife and
Mother. He assaulted Ex-wife while their two-year-old child was present.
• Father was verbally abusive and frequently threatened people when he came
into conflict with them.
• Father has suicidal tendencies and other mental health issues that he has not
treated.
A parent’s volatility, verbal abuse of service providers, verbal threats of violence, and
physical assaults are evidence of future danger to the child. See, e.g., In re J.L.M., No. 01-16-
00445-CV, 2016 WL 6754779, at *10 (Tex. App.—Houston [1st Dist.] Nov. 15, 2016, no pet.)
(mem. op.); see also In re J.L.B., 349 S.W.3d 836, 849 (Tex. App.—Texarkana 2011, no pet.)
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(parent’s association with drug user supported conclusion that termination was in children’s best
interest).
To the extent Father argues that he did not have a positive methamphetamine test after
2016, there was testimony that the sudden disappearance of methamphetamine from his drug tests
suggested that the tests might have been manipulated, especially given his different hair treatments
that he was instructed against. Regardless, recent improvement alone is not sufficient to avoid
termination of parental rights. In re N.T., 474 S.W.3d at 479.
d. Programs Available to Assist the Parent
The record indicates that Father did not truly take advantage of the programs and services
available to him during the pendency of this case. There was evidence that he did not learn from
the BIPP program he completed. His therapist’s testimony suggested he did not take her services
seriously. Caseworker Davis testified that Father stopped taking his mental health medications,
and there was no evidence of any programs that would help him become and stay medication
compliant. He did not give a social history, get a psychiatric evaluation, or participate in NA/AA
meetings as he was supposed to. He was generally uncooperative with Department personnel and
with service providers.
The trial court could reasonably conclude that this factor supported termination. See FAM.
§ 263.307(b)(10) (one best interest factor is “the willingness and ability of the child’s family to
seek out, accept, and complete counseling services and to cooperate with and facilitate an
appropriate agency’s close supervision”).
e. Plans for the Child and Stability of the Home or Proposed Placement
We may consider these factors together. See In re D.W., 445 S.W.3d at 929. There was
no evidence that Father had any particular plans for L.A. Girlfriend testified that she and Father
were looking for a house to move into when her lease expired (about two months after the trial’s
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end). Girlfriend also testified that she was about to regain custody of her two sons and that she
was involved in litigation over custody over her daughter. As previously mentioned, Girlfriend
admitted to being a past methamphetamine addict and to using it shortly before trial. The trial
court could have viewed all this evidence as showing that (i) Father’s plans for L.A., to the extent
he had any, would not serve L.A.’s best interest and (ii) Father would not provide L.A. with a
stable home.
There was also evidence that L.A. was thriving with her foster parents and that they wanted
to adopt her and C.A. This evidence of the proposed placement also supports the premise that
terminating Father’s rights would serve L.A.’s best interest.
f. Parent’s Acts and Omissions Showing an Improper Parent–Child
Relationship and Any Excuse for Them
We consider the last two Holley factors together. See In re D.W., 445 S.W.3d at 930.
Father’s drug use with Mother when they were responsible for L.A.’s safety indicated that
his parent–child relationship with L.A. was not a proper one. See In re A.W., 444 S.W.3d 690, 698
(Tex. App.—Dallas 2014, pet. denied) (considering drug use under this Holley factor). So did his
acts of domestic violence against Ex-wife and Mother. Caseworker Davis testified that Father did
not use skills he learned in a fatherhood class during his visits with L.A. Ryan testified that Father
had missed several visits with L.A. without timely notice or a doctor’s note. We see no evidence
of any excuses for Father’s behavior.
Father asserts in his summary of the argument that the trial court could have protected
L.A.’s interests with a remedy less drastic than terminating Father’s rights. He suggests that the
court could have made the foster parents L.A.’s sole managing conservators but still given him
some limited rights, and he points out that Mother will still have limited contact with the children.
However, there was evidence that the Department could not place the children with Mother’s
relatives after removal because Father had threatened those people and knew where they lived.
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Furthermore, Ryan testified that the Department had “a huge safety concern” for L.A.’s
foster or adoptive parents if Father were to have continued visitation.
Moreover, there was evidence that Father did not exercise his right to supervised visitation
with his other daughter, L.S., for several months leading up to the trial in this case.
This evidence supported a conclusion that giving Father continued contact with L.A. was
not in her best interest.
5. Conclusion
There was ample evidence supporting termination under the Holley and statutory best-
interest factors. The trial court could reasonably form a firm belief or conviction that terminating
Father’s parental rights would serve L.A.’s best interest. Accordingly, we hold that the evidence
was legally and factually sufficient, and we overrule Father’s second issue.
III. DISPOSITION
Having overruled Father’s two issues, we affirm the trial court’s judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
180645F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF C.A. AND L.A., On Appeal from the County Court At Law
CHILDREN No. 1, Kaufman County, Texas
Trial Court Cause No. 95793-CC.
No. 05-18-00645-CV Opinion delivered by Justice Whitehill.
Justices Francis and Fillmore participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered November 12, 2018.
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