in the Interest of Q. W., III, a Child

NO. 12-16-00281-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE
IN THE INTEREST OF Q.W., III,
§ COUNTY COURT AT LAW
A CHILD
§ CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
L.G. appeals the termination of her parental rights. In four issues, she challenges the legal
and factual sufficiency of the evidence to support the trial court’s termination order. We affirm.
BACKGROUND
L.G. is the mother of Q.W., III.1 On September 3, 2015, the Department of Family and
Protective Services (the Department) filed an original petition for protection of Q.W., III, for
conservatorship, and for termination of L.G.’s parental rights. The Department was appointed
temporary managing conservator of the child, and L.G. was appointed temporary possessory
conservator with limited rights and duties to the child.
At the conclusion of the trial on the merits, the trial court found, by clear and convincing
evidence, that L.G. had engaged in one or more of the acts or omissions necessary to support
termination of her parental rights under subsections (E), (N), and (O) of Texas Family Code
section 161.001(b)(1). The trial court also found that termination of the parent-child relationship
between L.G. and Q.W., III was in the child’s best interest. Based on these findings, the trial
1
The trial court found, by clear and convincing evidence, that the father of the child, Q.W., II, had engaged
in one or more of the acts or omissions necessary to support termination of his parental rights under subsections (N)
and (O) of Texas Family Code Section 161.001(b)(1). The trial court also found that termination of the parent-child
relationship between Q.W., II and Q.W., III was in the child’s best interest. Based on these findings, the trial court
ordered that the parent-child relationship between Q.W., II. and Q.W., III be terminated. The father is not a party to
this appeal.
court ordered that the parent-child relationship between L.G. and Q.W., III be terminated. This
appeal followed.
TERMINATION OF PARENTAL RIGHTS
Involuntary termination of parental rights embodies fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ
denied). Because a termination action “permanently sunders” the bonds between a parent and
child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.
1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).
Section 161.001 of the family code permits a court to order termination of parental rights
if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re
J.M.T., 39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have
engaged in any one of the acts or omissions itemized in the second subsection of the statute.
TEX. FAM. CODE ANN. § 161.001(b)(1) (West Supp. 2016); Green v. Tex. Dep’t of Protective &
Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39
S.W.3d at 237. Second, termination must be in the best interest of the child. TEX. FAM. CODE
ANN. § 161.001(b)(2) (West Supp. 2016); In re J.M.T., 39 S.W.3d at 237. Both elements must
be established by clear and convincing evidence, and proof of one element does not alleviate the
petitioner’s burden of proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at
351; In re J.M.T., 39 S.W.3d at 237.
The clear and convincing standard for termination of parental rights is both
constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911
S.W.2d at 439. Clear and convincing evidence means “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.” TEX. FAM. CODE ANN. § 101.007 (West 2014). The burden of proof is
upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.
STANDARD OF REVIEW
When confronted with both a legal and factual sufficiency challenge, an appellate court
must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619
2
S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must look at 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 findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable
fact finder could do so and disregard all evidence that a reasonable fact finder could have
disbelieved or found incredible. Id.
The appropriate standard for reviewing a factual sufficiency challenge to the termination
findings is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). In determining whether the fact finder has met this standard, an appellate court considers
all the evidence in the record, both that in support of and contrary to the trial court’s findings.
Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a
reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In
re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the
witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d
575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied).
TERMINATION UNDER SECTION 16.001(b)(1)(E)
In her first issue, L.G. contends the evidence is legally and factually insufficient to
terminate her parental rights pursuant to subsection (E) of Texas Family Code section
161.001(b)(1).
Applicable Law
The court may order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent has engaged in conduct, or knowingly placed the child with
persons who engaged in conduct, that endangers the physical or emotional well being of the
child. TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (West Supp. 2016). Scienter is not required for
an appellant’s own acts under section 161.001(b)(1)(E), although it is required when a parent
places her child with others who engage in endangering acts. In re U.P., 105 S.W.3d 222, 236
(Tex. App.—Houston [14th Dist.] 2003, pet. denied). The need for permanence is a paramount
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consideration for the child’s present and future physical and emotional needs. In re N.K., 99
S.W.3d 295, 301 n.9 (Tex. App.—Texarkana 2003, no pet.); In re M.D.S., 1 S.W.3d at 200.
“Endanger” means to expose to loss or injury or to jeopardize. Tex. Dep’t of Human
Svcs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re D.M., 58 S.W.3d 801, 811 (Tex. App.—
Fort Worth 2001, no pet.). It is not necessary that the conduct be directed at the child or that the
child actually suffers injury. Boyd, 727 S.W.2d at 533; In re J.J., 911 S.W.2d at 440.
Subsection (E) requires us to look at the parent’s conduct alone, including actions, omissions, or
the parent’s failure to act. In re D.J., 100 S.W.3d 658, 662 (Tex. App.—Dallas 2003, pet.
denied); In re D.M., 58 S.W.3d at 811. Termination under subsection (E) must be based on
more than a single act or omission. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d 625,
634 (Tex. App.—Fort Worth 2000, pet. denied). A voluntary, deliberate, and conscious “course
of conduct” by the parent that endangers the child’s physical and emotional well being is
required. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at 634.
A parent’s use of narcotics and its effect on her ability to parent may qualify as an
endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also In re
R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). A parent’s repeated
engagement in illegal drug activity or repeated association with known criminals, after agreeing
not to do so in a service plan for reunification with her child, may be considered in an analysis of
whether clear and convincing proof exists of voluntary, deliberate, and conscious conduct that
endangered the well being of her child. See In re T.N., 180 S.W.3d 376, 383 (Tex. App.—
Amarillo 2005, no pet.).
As a general rule, conduct that subjects a child to a life of uncertainty and instability
endangers the physical and emotional well being of a child. In re M.R.J.M., 280 S.W.3d 494,
503 (Tex. App.—Fort Worth 2009, no pet.); In re R.W., 129 S.W.3d at 739. Evidence of
criminal conduct, convictions, and imprisonment and its effect on a parent’s life and ability to
parent may establish an endangering course of conduct. In re S.M., 389 S.W.3d 483, 492 (Tex.
App.—El Paso 2012, no pet.). Imprisonment alone does not constitute an endangering course of
conduct, but it is a fact properly considered on the endangerment issue. Id. (citing Boyd, 727
S.W.2d at 533-34). Moreover, a parent’s failure to visit their child regularly during the pendency
of the case supports a finding of endangerment of the child’s emotional well-being. See In re
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S.I.H., No. 02-11-00489-CV, 2012 WL 858643, at *6 (Tex. App.—Fort Worth Mar. 15, 2012,
no pet.) (mem. op.).
If a parent abuses or neglects the other parent or another child, that conduct can be used
to support a finding of endangerment even against a child who was not yet born at the time of the
conduct. In re C.J.F., 134 S.W.3d 343, 351 (Tex. App.—Amarillo 2003, pet. denied).
Endangering conduct is not limited to actions directed towards the child. Boyd, 727 S.W.2d at
533. It necessarily follows that the endangering conduct may include the parent’s actions before
the child’s birth and while the parent had custody of older children, including evidence of drug
usage. See id. (stating that although endanger means more than a threat of metaphysical injury or
the possible ill effects of a less-than-ideal family environment, it is not necessary that the
parent’s conduct be directed at the child or that the child actually suffers injury); see also In re
M.N.G., 147 S.W.3d 521, 536 (Tex. App.—Fort Worth 2004, pet. denied) (holding that courts
may look to parental conduct both before and after child’s birth to determine whether termination
is appropriate).
Analysis
When L.G. gave birth to Q.W., III in the summer of 2015, she tested negative for drugs at
the hospital, and Q.W., III was born healthy. Michael Roberts, a Department investigator,
reviewed L.G.’s lengthy Department history involving three older children and contacted her at
the hospital. Because L.G. tested negative at the hospital and had an appropriate home, she was
allowed to be discharged from the hospital with the baby. However, two weeks later, L.G. tested
positive for cocaine. Roberts stated that L.G. denied any drug use, saying that she had not used
drugs in three years. According to L.G., it was “their word against [hers.]” Laurie Beaman, a
Department investigator, testified that L.G. believed “strongly” that she had no drug issues. She
said that L.G. continued to deny that the drug test was positive. Q.W., III was removed and
eventually placed in foster care.
Regarding L.G.’s drug use, testimony at trial showed that L.G. was asked to submit to
drug testing approximately once every month. Micah Goss, a Department caseworker, testified
that L.G. missed a hair follicle drug test on May 25, 2016, and a requested drug test on June 30,
2016. L.G. testified that she was unable to provide a hair follicle because of her hair extensions.
She admitted that she was told not to alter her hair during the course of the Department’s case.
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However, she said, if the choice was testing clean for her child or having pretty hair, she chose
pretty hair. According to L.G., she missed the June 30, 2016, drug test because she had to work.
L.G. had an extensive criminal record. She was arrested twice for burglary of a habitation
in 2009 and 2010. In 2011, L.G. was convicted of assault causing bodily injury of a family
member, the father of her two older children. She was charged with possession of prohibited
substance in a corrective facility in 2011, and sentenced to five years of deferred adjudication
community supervision. According to L.G., she was arrested for failing to appear on the 2011
assault charge. She stated that during a body search, officers discovered crack cocaine in her
hair. She admitted that she had been on her way to sell the drugs before being arrested. At the
time of trial, L.G. had also been charged with Medicaid fraud, a federal offense. She believed
she was facing five years of federal probation if convicted.
L.G. also had a history of relationships with men involved in criminal activity. The
father of her two oldest children had a criminal history, as did the father of her third child. L.G.
was also aware that Q.W., III’s father, Q.W., II, had a criminal history, including convictions for
making a terroristic threat and assault causing bodily injury. However, L.G. testified that she
was not aware of Q.W., II’s convictions for possession of a controlled substance, a state jail
felony; unlawful restraint, a felony; and burglary of a building, a state jail felony. She also knew
that the man with whom she had a relationship during this case had a criminal history, including
an assault charge.
Additionally, the testimony showed that L.G. missed at least half of her scheduled weekly
visitations with Q.W., III. Goss characterized L.G.’s attendance as very “sporadic,” even after
she worked to accommodate L.G.’s work schedule and offered her transportation. Beaman
stated that L.G. did not visit Q.W., III “even close to regularly,” and characterized it as “leaving
your child.” She also stated that it was “absolutely critical” that a parent take every opportunity
to spend time with their infant child in order to bond with them.
According to L.G., she missed some visitations with Q.W., III because of work and
transportation issues. She explained that the Department asked her to obtain full-time
employment and her employer refused to work around the Department’s schedule. Beaman
testified that the Department would accommodate parents, and would schedule visitations after
hours or on weekends. Nonetheless, L.G. never asked the Department to reschedule her
visitations and never responded to Goss’s offers of transportation.
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Finally, L.G.’s three older children were removed from her care, she voluntarily
relinquished her parental rights to all three children, and they were eventually adopted. The
testimony at trial showed that the two older children were removed because the Department
found there was reason to believe that she neglectfully supervised them. The Department’s
report showed allegations that the children had thrush and were underweight. L.G. admitted that
she was using cocaine during the Department’s case involving these children and tested positive
for drugs.
L.G.’s third child was born with her organs outside of her body, and tested positive for
marijuana and benzos. At that time, the conservatorship case involving L.G.’s two older children
was ongoing. L.G. denied using drugs during her pregnancy and told Beaman that it was not true
that the third child tested positive for drugs. The Department found reason to believe that L.G.
physically abused the child, and removed the child from her custody. According to Beaman, the
third child was critically ill, but survived “by a flat miracle.”
Conclusion
From this evidence, a reasonable fact finder could have determined that L.G. tested
positive for drugs shortly after giving birth to Q.W., III, did not submit to all requested drug
tests, had a history of drug issues during the Department’s investigations with her older children,
had a lengthy criminal history, and associated with men who had lengthy criminal histories. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(E). The fact finder could have also formed a firm belief
or conviction that she “sporadic[ally]” visited Q.W., III, had three other children removed from
her care for neglect and abuse, and relinquished her parental rights to three older children. See
id. Therefore, we hold that the evidence, viewed in the light most favorable to the finding, was
sufficiently clear and convincing that a reasonable trier of fact could have formed a firm belief or
conviction that L.G. engaged in conduct, or knowingly placed the child with persons who
engaged in conduct, that endangered the physical or emotional well being of the children. See In
re J.F.C., 96 S.W.3d at 266.
Although there is conflicting evidence that L.G. may have been unable to schedule
visitations around her work, a reasonable fact finder could have resolved these conflicts in favor
of its finding. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E). While there is some disputed
evidence, this evidence is not so significant that a reasonable trier of fact could not have
reconciled this evidence in favor of its finding and formed a firm belief or conviction that L.G.
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engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that
endangered the physical or emotional well being of the children. See In re C.H., 89 S.W.3d at
25.
Therefore, we hold that the evidence is legally and factually sufficient to support
termination of L.G.’s parental rights under section 161.001(b)(1)(E). Accordingly, we overrule
L.G.’s first issue.2
BEST INTEREST OF THE CHILDREN
In her fourth issue, L.G. contends the evidence is legally and factually insufficient to
support a finding that termination of her parental rights is in the child’s best interest. In
determining the best interest of the child, a number of factors have been considered, including
(1) the desires of the child; (2) the emotional and physical needs of the child now and in the
future; (3) the emotional and physical danger to the child now and in the future; (4) the parental
abilities of the individuals seeking custody; (5) the programs available to assist these individuals;
(6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or
omissions of the parent that may indicate the existing parent-child relationship is not a proper
one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976).
The family code also provides a list of factors that we will consider in conjunction with
the above-mentioned Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West Supp.
2016). These include (1) the child’s age and physical and mental vulnerabilities; (2) the
magnitude, frequency, and circumstances of the harm to the child; (3) the results of psychiatric,
psychological, or developmental evaluations of the child, the child’s parents, other family
members, or others who have access to the child’s home; (4) whether there is a history of
substance abuse by the child’s family or others who have access to the child’s home; (5) 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; (6) the
willingness and ability of the child’s family to effect positive environmental and personal
2
Because we have concluded that the evidence is legally and factually sufficient to support termination of
L.G.’s parental rights under subsection (b)(1)(E), we need not address her second and third issues regarding
subsections (b)(1)(O) and (b)(1)(N). See TEX. FAM. CODE ANN. § 161.001(b)(1); TEX. R. APP. P. 47.1.
8
changes within a reasonable period of time; (7) whether the child’s family demonstrates adequate
parenting skills; and (8) whether an adequate social support system consisting of an extended
family and friends is available to the child. See id. § 263.307(b)(1), (3), (6), (8), (10), (11), (12),
(13).
The evidence need not prove all statutory or Holley factors in order to show that
termination of parental rights is in a child’s best interest. See Holley, 544 S.W.2d at 372; In re
J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no pet.). In other words,
the best interest of the child does not require proof of any unique set of factors nor limit proof to
any specific factors. In re D.M., 58 S.W.3d at 814. Undisputed evidence of just one factor may
be sufficient in a particular case to support a finding that termination is in the child’s best
interest. In re M.R.J.M., 280 S.W.3d at 507. But the presence of scant evidence relevant to each
factor will not support such a finding. Id. Evidence supporting termination of parental rights is
also probative in determining whether termination is in the best interest of the child. See In re
C.H., 89 S.W.3d at 28-29. We apply the statutory and Holley factors below.
Analysis
The evidence discussed above shows that L.G. had a long history of drug use, failed to
submit to requested drug testing, failed to visit Q.W., III, and had a long history of associating
with criminals. She also had an extensive Department history and criminal history.
The testimony at trial showed that in the past, L.G. failed to complete or work her service
plans regarding her three older children. Beaman stated that she detected a pattern with L.G. and
the service plans. Specifically, L.G. did not work her services, blamed the Department for not
helping her, blamed her lack of transportation for her inability to comply, and denied drug use. In
this case, L.G. also failed to complete her service plan. She testified that she was unable to
attend Narcotics Anonymous classes because she worked the night shift and was unaware that
classes were offered day and night. She admitted that she did not attend sessions even when she
was out of work because she lacked transportation. Nor did L.G. complete counseling because
of her transportation issues. She was scheduled to attend counseling twice a month, but usually
attended once a month, if at all.
According to Goss, L.G. completed a psychological evaluation but did not follow the
recommendations. The recommendations included consulting with a skilled physician to
ascertain the benefits from medication; satisfactorily completing counseling to address issues
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regarding anxiety, anger, and irritability; completing parenting classes; establishing and
maintaining employment to support herself and her children; and establishing and maintaining a
sanitary, safe, drug-free, and stable home for herself and her children. Goss also noted that the
screening tool for the detection of physical child abuse on L.G.’s evaluation stated that the
resulting abuse scale score exceeded clinical cut-off levels, indicating that L.G. demonstrated
characteristics of known physical child abusers and was “at risk.”
Regarding L.G.’s relationship with Q.W., III, she had visitations with him at a relative’s
house before he was moved to foster care. The relative reported to Goss that L.G. did not show
much interest in the baby, and spent the majority of her visits on the porch, talking on a
telephone, and smoking cigarettes. She also insisted that her current boyfriend accompany her
on those visits. After Q.W., III was moved to foster care, Goss observed visitations between
L.G. and the baby. She stated that L.G. behaved appropriately, but lacked knowledge of child
development. L.G. wanted him to sit up and play when he was too young to do so, and swaddle
him when he wanted to take his bottle himself while he was “playing and running around.” Goss
stated that L.G. never brought Q.W., III presents even though she provided a car seat and some
clothing during one visit. She never provided any type of financial support for the baby’s
caregivers.
At the time of trial, L.G. was unemployed. During the case, she worked for two different
employers. L.G. said that she quit her first job because she was not making enough money to
take care of herself or her child, and provide a home. She stated that she quit her second job
because she missed too many visitations. L.G. stated that she was out of work for approximately
a month and a half before returning to the first job. However, she admitted quitting that job two
weeks before trial because she injured her hand. She testified that she was looking for work, but
had recently refused employment because it was “just not that much pay.”
Regarding Q.W., III, Goss testified that at the time of trial, he was pulling up, standing,
crawling, and taking a few steps. She stated that he appeared to be very happy in his foster home
and very bonded to his foster father. The CASA volunteer described Q.W., III as “blossoming,”
developing normally, and appearing to be happy and healthy. She noted the “wonderful
interaction” between the foster father and Q.W., III. The foster father testified that Q.W., III was
at the “toddling” stage and fit in with their family. He stated that they hoped to provide Q.W., III
with a safe loving home where he could grow and have an “exceptional chance at life.” L.G.
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testified that she would “have [her] struggles,” but would look for a job, try to get on her feet,
and obtain her own vehicle and home.
Beaman, Goss, and the CASA volunteer believed it was in Q.W., III’s best interest for
L.G.’s parental rights to be terminated. According to Beaman, L.G. did not complete her service
plan, did not provide financially for her child, and did not visit him regularly. Nor did she believe
that L.G. had addressed her drug issues.
Conclusion
Viewing the above evidence relating to the statutory and Holley factors in the light most
favorable to the trial court’s findings, we hold that a reasonable fact finder could have formed a
firm belief or conviction that termination of L.G.’s parental rights is in the best interest of the
child. See In re J.F.C., 96 S.W.3d at 266. L.G. argues in her brief, however, that her “relatively
stable recent history” should not be overlooked, including numerous negative drug tests and her
ability to obtain employment. She also contended that she no longer associated with
“questionable” individuals. But this evidence is not so significant that a reasonable trier of fact
could not have reconciled this evidence in favor of its finding and formed a firm belief or
conviction that termination of L.G.’s parental rights is in the best interest of the child. See id.
Therefore, we hold that the evidence is legally and factually sufficient to support the trial court’s
finding that termination of L.G.’s parental rights is in the child’s best interest. See TEX. FAM.
CODE ANN. § 161.001(b)(2). Accordingly, we overrule L.G.’s fourth issue.
DISPOSITION
Having overruled L.G.’s first and fourth issues, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered March 31, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MARCH 31, 2017
NO. 12-16-00281-CV
IN THE INTEREST OF Q. W., III, A CHILD
Appeal from the County Court at Law
of Cherokee County, Texas (Tr.Ct.No. 2015-09-0574)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.