in the Interest of K.G. and K.G., Children

Opinion filed June 23, 2022
In The
Eleventh Court of Appeals
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No. 11-21-00293-CV
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IN THE INTEREST OF K.G. AND K.G., CHILDREN
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV 1909354
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the father of K.G. and K.G., appointed the mother as a possessory
conservator, and appointed the Department of Family and Protective Services as the
children’s permanent managing conservator. The father filed this appeal. On appeal,
he presents one issue in which he challenges the trial court’s finding that the
termination of his parental rights was in the children’s best interest. We affirm the
order of the trial court.
I. Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West 2022). To terminate parental
rights, it must be shown by clear and convincing evidence that the parent has
committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id.
In this case, the trial court found that Appellant had committed four of the acts
listed in Section 161.001(b)(1)—those found in subsections (D), (E), (N), and (O).
Appellant does not challenge these findings on appeal.
The trial court also found, pursuant to Section 161.001(b)(2), that termination
of Appellant’s parental rights would be in the best interest of the children. See id.
§ 161.001(b)(2). In his sole issue on appeal, Appellant challenges both the legal and
factual sufficiency of the evidence to support the trial court’s best interest finding.
To determine if the evidence is legally sufficient in a parental termination case,
we review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the
evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or
conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002). We note that the trial court is the sole arbiter of the credibility
and demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (citing In
re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005)).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
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Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (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 that 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. Id.Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
II. Evidence and Analysis
The record shows that Appellant had a history of involvement with the
Department of Family and Protective Services prior to this case. The 2019 intake
involved in this case stemmed from Appellant and his paramour (Cassy) leaving five
children home alone without adult supervision. Two of those children were Cassy’s;
two were Appellant’s (eight-year-old K.G. and seven-year-old K.G.); and the
youngest one, who had not yet turned one year old, was Appellant and Cassy’s
together.
Appellant and Cassy were both using methamphetamine “[o]ff and on” in
2019, and Appellant supplied Cassy with methamphetamine even though she was
the primary caregiver for the children. During the Department’s investigation of this
case, Cassy tested positive for methamphetamine. Appellant refused to submit to a
drug test at that time, but he denied using drugs.
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However, not long thereafter, Appellant was arrested for possession of
methamphetamine. A few weeks later, Cassy appeared to be under the influence
when she dropped the children off at school. She tested positive for
methamphetamine and amphetamine upon her return home from the school, and she
admitted to the Department that she had “snorted” methamphetamine outside her
residence while K.G. and K.G. and two of the other children were inside the
residence. Cassy reported that she obtained the methamphetamine from Appellant
and that she “last used” methamphetamine with Appellant. The Department
removed the children from Appellant’s care at that time. A few months after the
children were removed, Appellant tested positive for methamphetamine. Although
Appellant had three negative drug tests in early 2020, he thereafter failed to submit
to drug testing as requested or could not be reached by the Department.
In September 2020, Appellant was tried and convicted by a jury for the offense
of possession of a controlled substance. Two other pending charges against
Appellant—child endangerment and felony theft—were dismissed. For his
conviction, Appellant’s punishment was assessed at confinement for ten years, but
the imposition of that sentence was suspended and Appellant was placed on
community supervision for ten years. Appellant was required to go to SAFPF for a
period of time as a condition of his community supervision. The record reflects that,
for the first year after the children were removed, Appellant was not incarcerated but
that, during this time period, he failed to cooperate with the Department.
By the last day of trial, Appellant had been released from SAFPF and a
halfway house and had gone back to work. Upon his release from the halfway house,
Appellant moved in with Cassy. Cassy testified that Appellant loved his children,
that he had changed, and that he was no longer doing drugs. We note that, at the
time of Cassy’s testimony, Appellant had only been out of the halfway house for
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approximately two weeks. Cassy had recently relapsed; therefore, Appellant and
Cassy’s home would not be an appropriate place for the children. The record shows
that Cassy tested positive for methamphetamine less than three weeks prior to the
final day of trial.
Appellant had four living biological children in addition to K.G. and K.G. He
did not have custody of any of those children, and he admitted that, at the time of
trial, he was not in a position to be a managing conservator for K.G. and K.G. But
he hoped to remain a possessory conservator and stated that he would love to have
his children returned home to him. Appellant testified that he spent a lot of time with
K.G. and K.G. and that they “did everything together” after he obtained custody of
them from their mother (who also had a methamphetamine problem). In addition to
discussing the close bond that he had with K.G. and K.G., Appellant testified that,
since being placed in SAFPF, he had made positive changes in his life and did not
“even drink alcohol anymore.”
The Department’s plan for the children was for them to remain with their
maternal grandmother, for the mother to have limited possessory conservatorship,
and for Appellant’s parental rights to be terminated. K.G. and K.G. were doing very
well in the care of their grandmother. Appellant had not talked to them in over a
year, and he had not seen them since the day they were removed from Appellant’s
care. K.G. and K.G. indicated that they would like to stay with their grandmother—
permanently. Their grandmother testified that she did not want to supervise visits
between Appellant and the children and that she did not think supervised visits would
be a good idea. She expressed concerns for the safety of K.G. and K.G.—based in
part upon Appellant and Cassy still being together. The grandmother did not want
the children “to have to go through this again.” K.G. and K.G. were doing very well
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at the time of trial and were over the disappointment of Appellant not being in their
lives and not showing up for visitation.
The trial court, as the trier of fact, is the sole judge of the witnesses’ credibility.
A.B., 437 S.W.3d at 503. We are not at liberty to disturb the determinations of the
trier of fact as long as those determinations are not unreasonable. J.P.B., 180 S.W.3d
at 573. Appellant’s testimony regarding his recent strides does not necessarily
overcome the probative value of his past history of drug use and irresponsible
choices. See In re J.F.-G., 627 S.W.3d 304, 316–17 (Tex. 2021); In re J.O.A., 283
S.W.3d 336, 346 (Tex. 2009). Giving due deference to the trial court, we hold that,
based on the evidence presented at trial and the Holley factors, the trial court could
reasonably have formed a firm belief or conviction that termination of Appellant’s
parental rights would be in the best interest of K.G. and K.G. 1 See Holley, 544
S.W.2d at 371–72. Upon considering the record as it relates to the desires of the
children, the emotional and physical needs of the children now and in the future, the
emotional and physical danger to the children now and in the future, the parental
abilities of those involved, the plans for the children by the Department, Appellant’s
drug use, the use of drugs by Appellant’s paramour (with whom he lived at the time
of trial), Appellant’s failure to visit or have any contact with the children for over a
year, and the instability of Appellant’s situation, we hold that the evidence is legally
and factually sufficient to support the finding that termination of Appellant’s parental
rights is in the best interest of K.G. and K.G. See id. We defer to the trial court’s
finding as to the children’s best interest, see C.H., 89 S.W.3d at 27, and we cannot
1
We note that the Department asked the trial court to take judicial notice of the contents of the
court’s file in this cause, in a related termination proceeding, and in the criminal proceedings involving
Appellant and Cassy. Appellant’s attorney indicated that he did not object, and the trial court stated that it
would take judicial notice of the contents of those four files. However, three of those files are not part of
the record in this appeal.
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hold in this case that the trial court’s finding as to best interest is not supported by
clear and convincing evidence. Accordingly, we overrule Appellant’s sole issue.
III. This Court’s Ruling
We affirm the order of the trial court.
W. BRUCE WILLIAMS
JUSTICE
June 23, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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