in the Interest of H.H. and H.H., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-345-CV
IN THE INTEREST OF H.H., AND
AND H.H., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
In three issues, Appellant Hollie H. argues that the evidence is legally and
factually insufficient to support the termination of her parental rights to H.H.
(Jane) and H.H. (Mary). 2 We will affirm.
1
… See T EX. R. A PP. P. 47.4.
2
… We use fictitious names in accordance with section 109.002(d) of the
family code. T EX. F AM. C ODE A NN. § 109.002(d) (Vernon 2002).
II. B ACKGROUND F ACTS
In September 2006, Child Protective Services (CPS) began working with
Hollie to reunify her with Jane, the older child, who was living with Hollie’s
cousin. A CPS safety plan was in place that required Hollie to leave Jane in the
care of her cousin until she engaged in recommended services. The CPS
caseworker, Tonyette Stafford, testified that Hollie told her that the safety plan
was put into effect because at that time, there was no running water in her
home on South Perkins and she had admitted to the previous CPS worker that
she was using cocaine. Hollie was about eight months pregnant with Mary, the
younger child, at the time, and admitted to Stafford that she was using cocaine.
Stafford asked Hollie take a drug test in September, but Hollie failed to take the
test.
Stafford developed a service plan for Hollie that required her to go to
parenting classes and drug treatment, to attend a psychological evaluation, and
to improve the condition of her home. Stafford testified that Hollie admitted to
using drugs throughout the pregnancy. Stafford also testified that, although
she encouraged Hollie to enter drug treatment and discussed the dangers of
drug use during pregnancy with her, Hollie never entered treatment. Mary was
born in October 2006 and tested positive for cocaine at the time of birth.
2
Stafford testified that when Mary was born, Hollie’s home was not safe for
small children.
Shortly after Mary was born, CPS removed Jane, who had been in
voluntary placement with another family member, and took her into CPS care
along with Mary. Prior to removal, CPS checked with the family member who
was caring for Jane to see if placing Mary with her was an option; the family
member stated that she was unable to care for a second child. Stafford
testified that, after the removal, she informed Hollie that she could still get her
children back by completing the service plan and showing that she could be a
good mother, which Hollie stated she wanted to do. However, Hollie did not
complete any of the services on her service plan.
By the time of trial, in August and September 2007, Hollie was pregnant
again. She testified that she had begun using marijuana at age thirteen and that
she was kicked out of school in the ninth grade. She stated that her plan if she
got her children back was to move in with the father of her third child, who had
a history of assault.3 Hollie testified that she gave birth to Jane when she was
3
… Earlieve Hampton, the alleged father of Hollie’s third child, was in jail
during Hollie’s trial, awaiting his own trial on an indictment for assault. His
charge was enhanced as a habitual offender due to seven previous assault
convictions and a burglary of a habitation conviction. Hollie testified that he
would not hurt her children because he loves them, that she had known
Hampton for less than two years at the time of trial, and that she had been
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sixteen and that all she knew about Jane’s father was that he was a twenty-
seven-year-old illegal alien who went by the nickname “Taco.” She had known
him for only a week before moving in with him.
On the last day of trial, the children’s attorney ad litem asked Hollie if it
was in the best interest of her children for them to be placed back with her.
Hollie replied, “Not at the moment, but I want them back.” Hollie testified that
she had a cousin who wanted to adopt her kids, but that she would not be
willing to voluntarily terminate her rights so that her children could be adopted.
The State sought termination of Hollie’s parental rights on endangerment
grounds. See T EX. F AM. C ODE A NN. § 161.001(1) (D), (E) (Vernon Supp. 2007).
After a bench trial, the trial court found that Hollie (1) knowingly placed or
knowingly allowed Jane and Mary to remain in conditions or surroundings
which endangered their physical and emotional well-being and (2) engaged in
conduct or knowingly placed them with persons who engaged in conduct which
endangered their physical or emotional well-being. It additionally found that it
was in the best interest of Jane and Mary that Hollie’s parental rights be
terminated and that the State should receive custody and managing
conservatorship of the children. This appeal followed.
living with him on and off since the day they met.
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III. L EGAL AND F ACTUAL S UFFICIENCY
Hollie contends that the evidence is legally and factually insufficient to
support the trial court’s best interest and family code section 161.001(1)(D)
and (E) findings. 4
A. Standards of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59,
102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
“While parental rights are of constitutional magnitude, they are not absolute.
Just as it is imperative for courts to recognize the constitutional underpinnings
of the parent-child relationship, it is also essential that emotional and physical
interests of the child not be sacrificed merely to preserve that right.” In re C.H.,
89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the State seeks not just
4
… The State argues that Hollie’s legal and factual sufficiency challenges
are not properly before this court because her combined motion for new trial
and statement of points did not comply with the requirements of
section 263.405(i) of the family code. See T EX. F AM. C ODE A NN. § 263.405(i)
(Vernon Supp. 2007). Having previously held that section 263.405(i) violates
the Texas constitution, we will review Hollie’s issues. See In re D.W., 249
S.W.3d 625, 629 (Tex. App.—Fort W orth, 2008, pet. filed) (holding that
section 263.405(i) is void as a violation of the separation of powers provision
of the Texas constitution).
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to limit parental rights but to end them permanently–to divest the parent and
child of all legal rights, privileges, duties, and powers normally existing between
them, except for the child’s right to inherit. T EX. F AM. C ODE A NN. § 161.206(b)
(Vernon 2007); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly
scrutinize termination proceedings and strictly construe involuntary termination
statutes in favor of the parent. Holick, 685 S.W.2d at 20–21; In re E.M.N., 221
S.W.3d 815, 820 (Tex. App.—Fort Worth 2007, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish at least one
ground listed under subdivision (1) of the statute and must also prove that
termination is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001;
In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
established; termination may not be based solely on the best interest of the
child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987).
Termination of parental rights is a drastic remedy and is of such weight
and gravity that due process requires the petitioner to justify termination by
clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);
In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002). This intermediate standard
falls between the preponderance standard of ordinary civil proceedings and the
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reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W .2d
846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth
2006, pet. denied). It is defined as 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.” T EX. F AM. C ODE A NN. § 101.007
(Vernon 2002).
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the grounds for termination
were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must
review all the evidence in the light most favorable to the finding and judgment.
Id. This means that we must assume that the fact-finder resolved any disputed
facts in favor of its finding if a reasonable fact-finder could have done so. Id.
We must also disregard all evidence that a reasonable fact-finder could have
disbelieved. Id. We must consider, however, undisputed evidence even if it is
contrary to the finding. Id. That is, we must consider evidence favorable to
termination if a reasonable fact-finder could and disregard contrary evidence
unless a reasonable fact-finder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
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the appearance and demeanor of the witnesses, for that is the fact-finder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the fact-finder’s determinations as long as
they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due
deference to the fact-finder’s findings and not supplant the judgment with our
own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a fact-finder could reasonably form a firm
conviction or belief that the termination of the parent’s parental rights would
be in the best interest of the child. C.H., 89 S.W.3d at 28. If, in light of the
entire record, the disputed evidence that a reasonable fact-finder could not have
credited in favor of the finding is so significant that a fact-finder could not
reasonably have formed a firm belief or conviction in the truth of its finding,
then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108. If we
reverse on factual sufficiency grounds, then we must detail in our opinion why
we have concluded that a reasonable fact-finder could not have credited
disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266–67.
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B. Analysis
1. Endangerment
The term “endanger” means to expose to loss or injury, to jeopardize.
Boyd, 727 S.W.2d at 533. Although both subsections (D) and (E) involve
endangerment, under subsection (D), the environment of a child must be
examined to determine if that is a source of endangerment to the child. T EX.
F AM. C ODE A NN. § 161.001(1)(D); In re D.T., 34 S.W.3d 625, 632 (Tex
App.—Fort Worth 2000, pet. denied). When analyzing the trial court’s findings
under subsection (E), we must determine whether sufficient evidence exists
that the endangerment of the child’s physical well-being was the direct result
of the parent’s conduct, including acts, omissions, or failures to act. In re
D.M., 58 S.W.3d 801, 811–12 (Tex. App.—Fort Worth 2001, no pet.).
Termination under section 161.001(1)(E) must be based on more than a single
act or omission; a voluntary, deliberate, and conscious course of conduct by the
parent is required. D.T., 34 S.W.3d at 634; In re K.M.M., 993 S.W.2d 225,
228 (Tex. App.—Eastland 1999, no pet.). However, it is not necessary that
the parent’s conduct be directed at the child or that the child actually suffer
injury. Boyd, 727 S.W.2d at 533. The specific danger to the child’s well-being
may be inferred from parental misconduct standing alone. Id.
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To determine whether termination is necessary, courts may look to
parental conduct both before and after the child’s birth. D.M., 58 S.W.3d at
812. 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 S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied).
A pattern of continued drug use, including drug use during the pregnancy
of another child and a parent’s failure to remain drug-free while under the
State’s supervision, will support a finding of endangering conduct under section
161.001(1)(D) even if there is no direct evidence that the parent’s drug use
actually injured the child. Vasquez v. Tex. Dep’t of Prot. & Regulatory Servs.,
190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)
(holding evidence legally and factually sufficient to support endangering-conduct
finding when older sibling of subject child tested positive for drugs at birth and
parent continued to use drugs after subject child’s birth and during pendency
of Department’s involvement). A fact-finder may reasonably infer from a
parent’s failure to attend scheduled drug screenings that the parent was
avoiding testing because the parent was using drugs. In re W.E.C., 110
S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.); see also In re T.N.,
180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet)(reasoning that a
parent’s engaging in illegal drug activity after agreeing not to do so in a service
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plan for reunification with her children is sufficient to establish clear and
convincing proof of voluntary, deliberate, and conscious conduct that
endangered the well-being of her children).
Here, the record shows that Hollie used illegal drugs throughout CPS’s
involvement in her life. Hollie continued to use illegal drugs even after CPS
informed her of its concerns and that she could be harming her unborn baby.
When Mary was born cocaine positive, CPS removed her and Jane from Hollie’s
care. CPS created a service plan for Hollie that included drug treatment, but
Hollie failed to enter drug treatment or complete any of the other services that
CPS recommended. Hollie has also found it difficult to remain employed.
The State presented substantial testimony during the trial to support its
contention that the South Perkins home, where Hollie and Jane had been living,
was not a safe environment for a young child. Hollie and Jane were living in
the South Perkins home when CPS initiated the investigation. A CPS worker
testified that there was old food and clothing strewn throughout the home, an
open pornographic magazine lying in plain view on the kitchen floor, and
minimal food in the home. He described the kitchen as being covered in a
greasy residue and stated that the stove had accidently been left on over night.
He also noted that the bathroom was very dirty and did not have a functioning
toilet or sink and that there was no hot water in the residence.
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Hollie testified at trial that her plan if the children were returned to her
was to move back in with Earlieve Hampton, and she offered no alternative plan
when confronted with the information that Hampton was in jail and might be
a danger to her children. Hollie presented evidence that the South Perkins
home had been cleaned up and that she had completed all but one day of a
drug rehabilitation program. And she pointed out that Jane was not living with
her in the South Perkins home at the time of the removal because she had
already voluntarily placed Jane with a relative.
The State’s evidence supporting termination of Hollie’s parental rights
includes Hollie’s multiple admissions of drug use during the case; her failure to
complete several requested drug tests; her multiple positive drug tests, which
included marijuana, cocaine, and methamphetamine; her lack of stable, suitable
housing for her children; her lack of effort in attending and completing CPS
services; the CASA volunteer’s recommendation that Hollie’s parental rights be
terminated; and Mary testing positive for cocaine at birth.
Hollie had many explanations for her inability to complete the CPS
service plan. Hollie stated that she was delayed from entering drug treatment
because initially she thought she had to pay for it and did not have the money.
When she figured out that she did not have to pay, she discovered that her I.D.
card had been stolen and she could not enter until she obtained a new one.
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When a “bed” again became available, Hollie stated that the notice was too
short and she did not have the proper clothing necessary to attend. Hollie did
not engage in an aftercare program because it did not start until after her trial
began and she felt the programs were either too early or too late in the day.
Viewing all the evidence in the light most favorable to the trial court’s
judgment, we conclude that the trial court could have reasonably found that
Hollie endangered her children. The evidence established that Hollie allowed
Jane to remain in conditions and surroundings that endangered her physical and
emotional well-being and that her continuous drug use constituted conduct that
endangered both Jane’s and Mary’s physical and emotional well-being. See
J.P.B., 180 S.W.3d at 573.
Giving due deference to the trial court as the fact-finder, we also
conclude that the evidence was factually sufficient. Based on the entire record,
the trial court could have reasonably concluded that Hollie’s drug use and failure
to provide a safe environment for her children endangered them. See T EX. F AM.
C ODE A NN. § 161.001(1)(D), (E). We overrule Hollie’s first two issues.
2. Best Interest
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. Id. § 263.307(a). There is also a
strong presumption that keeping a child with a parent is in the child’s best
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interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Nonexclusive factors
that the trier of fact in a termination case may use in determining the best
interest of the child include:
(1) the desires of the child;
(2) the emotional and physical needs of the child now and
in the future;
(3) the emotional and physical danger to the child now and
in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to
promote the best interest of the child;
(6) the plans for the child by these individuals or by the
agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate
that 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).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
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termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
a. Desires of the Children
At the time of trial, Jane was three years old, and Mary was eleven
months old. Hollie testified that Jane told her that she wanted to go home with
her and did not want to go with CPS at the end of her visits. She stated that,
during the visits, she held Mary and that Jane interacted with her and brought
toys and puzzles over to her. A CPS worker who monitored the visits agreed
that Jane was always happy to see Hollie at the visits, but she was concerned
that Jane was not as bonded with Hollie as she should be. Hollie’s counsel
pointed out that Jane had spent a majority of her life in someone else’s care
and that Hollie never had custody of Mary. The children’s court appointed
advocate testified that the children were bonded with their foster family and
called their foster parent “mom.”
b. Emotional and Physical Needs and Danger
The State presented evidence that Hollie had a long history of illegal drug
use, and despite multiple opportunities before and during trial, she did not
complete a drug treatment program, engage in aftercare programs, or show a
desire to maintain a drug-free lifestyle. Hollie’s plan to meet the children’s
15
needs in the future was to move in with Hampton, and she did not offer an
alternative plan when questioned about Hampton’s illegal drug use and history
of crime and violence.
c. Parental Abilities
Hollie was referred to parenting classes during the initial investigation and
as part of her service plan. The State presented evidence that, during the
course of CPS’s involvement in Hollie’s life, she had not shown the ability to
find employment, maintain stable housing, complete parenting classes, or
establish any pattern that would indicate that she was able to become or
remain drug free.
d. Plans for the Children
The State presented adoption as its plan for the children. A CPS
representative testified that there was very little chance that the children would
not be adopted. She stated that the current foster family was considering
adoption and that there were three other families interested in adopting Jane
and Mary if the current family did not adopt them. Hollie testified during the
trial that she did not think it was in her children’s best interest that they be
returned to her at that time.
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e. Stability of the Home
Prior to removal by CPS, Jane had lived at three different residences and
with three different people since turning six months old. A CPS worker testified
that, in her opinion, Hollie was not capable of living independently and that
Hollie failed to participate in services that would have helped her gain those
skills.
Another CPS worker testified that, during the year that the children were
in CPS’s care, the children were moved twice, to two different foster homes.
However, CPS placed the children in a foster home that was approved for
adoption, and its plan was to have both children adopted by the same family
so that the children would not need to be moved again.
f. Acts or Omissions
Hollie regularly visited her children after their removal, but after the trial
started, she missed a visit and did not call CPS. Her excuse was that she was
too sick to call and slept through the visit. Additionally, a CPS worker testified
that on one occasion, she believed that Hollie came to the visit with her
children while she was under the influence of drugs and that Hollie refused to
take a drug test when confronted.
Hollie testified that she did not complete various services because she did
not have identification, she hated herself, she did not think she would get Jane
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back, and she lacked transportation. However, a CPS worker testified that she
had arranged for transportation to all of the services that Hollie was asked to
complete.
Viewing all the evidence in the light most favorable to the judgment, we
hold that the evidence was legally sufficient to support the trial court’s finding
that termination of Hollie’s parental rights was in the children’s best interest.
See T EX. F AM. C ODE A NN. § 161.001(2). Viewing the same evidence in a
neutral light, we hold that it was also factually sufficient to support the trial
court’s findings that termination of Hollie’s parental rights was in the children’s
best interest. See id. We overrule Hollie’s third issue.
IV. C ONCLUSION
Having overruled all of Hollie’s issues, we affirm the trial court’s judgment
terminating Hollie’s parental rights to Jane and Mary.
PER CURIAM
PANEL F: HOLMAN, LIVINGSTON, and DAUPHINOT, JJ.
DELIVERED: July 24, 2008
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