in the Interest of M.D.W., Jr., a Child

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00083-CV
IN THE INTEREST OF M.D.W., JR., A CHILD
On Appeal from the 316th District Court
Hutchinson County, Texas
Trial Court No. 44,472, Honorable James M. Mosley, Presiding
July 26, 2022
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellant, A.G.,1 appeals from the trial court’s order terminating her parental rights
to her son, M.D.W., Jr. By a single issue, she challenges the sufficiency of the evidence
to support the trial court’s best-interest finding. We affirm.
Background
A.G. has a history with appellee, the Texas Department of Family and Protective
Services, that began immediately following the birth of M.D.W., Jr. in June 2017. Four
1 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM.
CODE ANN. § 109.002(d); see also TEX. R. APP. P. 9.8(b). The father’s parental rights were also terminated
but he did not pursue an appeal.
previous cases of allegations of neglectful supervision were ruled out, and the cases were
closed. A family service plan was developed for A.G. The underlying case is the fifth
case involving the Department and resulted in termination proceedings.
A.G has mental health issues involving her cognitive development. She struggles
with memory issues. She receives disability benefits but not for any physical disabilities.
After M.D.W., Jr.’s birth, the Department received a referral of neglectful supervision out
of concern that A.G. would not be able to care for a newborn.
A.G. abuses marihuana and while the child was in the Department’s care, A.G.
had several positive drug screens. She and her paramour have a history of domestic
violence which resulted in numerous trips by law enforcement to their apartment prior to
the child’s removal. In February 2020, law enforcement was dispatched to the home on
a domestic disturbance call. A.G. and her paramour had been arguing.
According to the police report, the paramour was extremely intoxicated and
agitated. He acted aggressively toward the officers. He was handcuffed and arrested for
allegedly assaulting A.G. She told the officers that her paramour had placed his hands
on her neck and left a mark. She claimed that she scratched her paramour which the
officer interpreted as acting in self-defense. The paramour was charged with assault
family violence for intentionally, knowingly, and recklessly causing bodily injury to A.G.
“by grabbing her by the face.” A.G. later claimed that she had not been assaulted and
that her paramour had been wrongfully arrested. The record does not reflect the
disposition of the case filed against the paramour.
In the months that followed, police officers were dispatched to A.G.’s home on
several occasions. On June 29, 2020, neighbors complained of “a couple yelling” but the
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responding officer found that no offense had been committed. On September 22, 2020,
an officer was dispatched for an incident involving A.G.’s paramour and his sister.
Although the paramour was highly intoxicated, there was insufficient information to
determine whether an offense had occurred. Three days later, officers were again
dispatched for a verbal disturbance involving A.G. and her paramour. A.G. denied that
any violence had occurred, and one of the officers did not observe any physical injuries.
However, the paramour was advised that law enforcement had been dispatched to the
residence too many times to believe the threat of violence would be diminished once they
left. The paramour was instructed to gather some belongings and was escorted to a
separate location.2
In November 2020, the Department removed M.D.W., Jr. from his mother and
placed him with an aunt after an allegation of neglectful supervision. The child, then three
years old, had left the home alone and walked barefoot across a “busy highway.”
According to A.G., her stepfather was watching the child at the time but unbeknownst to
her, he left while she slept.
After the child’s removal, the Department filed its original petition for termination
on November 9, 2020, and implemented a family service plan. Due to the COVID-19
pandemic, most services were available online and A.G. had access to the internet.
However, according to the caseworker, A.G. did not begin her services until November
2021, a year after the child’s removal. She struggled to perform the services despite the
caseworker repeatedly explaining them to her.
2 The police reports do not mention whether A.G.’s son was present in the home during the
incidents although the record establishes that the child was not present during the February 2020 incident.
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The caseworker testified that A.G. was evicted from her home and was living with
her mother during the proceedings. A.G.’s only source for financial support came from
disability payments. The caseworker, however, testified that A.G. is not physically
disabled or unable to work. She further testified that A.G. had not established six months
of sobriety or stable housing and had not acquired the skills necessary from services to
manage her anger. The reasons for the child’s removal had not been alleviated.
A.G.’s visitation with her son was suspended for positive drug screens for
marihuana in January and February 2021. The caseworker testified that A.G. had been
arrested and jailed for domestic violence committed against her paramour. A.G. intended
to continue the relationship with him even though they were living separately at the time
of the final hearing. Her intention to continue the relationship caused the caseworker
concern for the child’s safety. A.G. also failed to complete most of her services. When
the caseworker was asked whether she believed that A.G. could provide a safe and stable
environment for the child, she replied, “No.” She also expressed concern about the child’s
emotional and psychological well-being if he was returned to A.G. She testified that
termination of A.G.’s parental rights was in the child’s best interest.
To that end, the caseworker expressed that the child’s current placement with his
aunt was providing him with a safe and stable home, and the aunt expressed an interest
in adopting him. Other children are present in the home, and the child has bonded with
them and his aunt. According to the caseworker, the aunt was meeting the child’s
medical, dental, and psychological needs.
After the Department presented its evidence and rested, A.G. was the only witness
for her case-in-chief. She confirmed that she had not been able to complete her services.
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She testified that she is “slow at reading” and receives disability as her only source of
income. She confirmed that she is not physically disabled but does not work because
she is scared, anxious, and forgetful. When asked about her child walking alone to a
convenience store, she testified “[t]hey said somebody walked my kid to Allsup’s, and
then I just don’t understand. Like, they say so many things, that he was by himself, and
they said that there was somebody walking with him.” She then explained that her
stepfather was supposed to be watching her son while she slept but he had left without
informing her.
A.G. testified that termination of her parental rights would not be in her child’s best
interest. However, she testified that she tried not to use drugs but continued to do so
because of her anxiety. She further testified that she was not currently living with her
paramour but intended to continue the relationship with him and live with him in the future.
During cross-examination, she acknowledged the multiple incidents of domestic violence
and conceded that such an environment would not be safe for her child. She also testified
that, although she lived with her mother and that her child could live there too, her sisters
declined to help her when she reached out to them. She had no other support from family
besides living with her mother.
Following closing arguments, the trial court found that A.G. (1) knowingly placed
or knowingly allowed her child to remain in conditions which endangered his physical and
emotional well-being; (2) engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangered his physical or emotional well-being; and (3)
failed to comply with the provisions of a court order that specifically established the
actions necessary to obtain the return of her child. The trial court also found that
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termination of A.G.’s parental rights was in her child’s best interest. See TEX. FAM. CODE
ANN. § 161.001(b)(1)(D), (E), and (O), (b)(2).
Applicable Law
The Texas Family Code permits a court to terminate the relationship between a
parent and a child if the Department establishes one or more acts or omissions
enumerated under section 161.001(b)(1) of the Code and that termination of that
relationship is in the best interest of the child. See id. § 161.001(b)(1), (2); Holley v.
Adams, 544 S.W.2d 367, 370 (Tex. 1976). The burden of proof is by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.206(a). “‘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.” Id. § 101.007.
Only one statutory ground is needed to support termination though the trial court
must also find that termination is in a child’s best interest. In re K.C.B., 280 S.W.3d 888,
894–95 (Tex. App.—Amarillo 2009, pet. denied). In reviewing a termination proceeding,
the standard for sufficiency of the evidence is that discussed in In re K.M.L., 443 S.W.3d
101, 112–13 (Tex. 2014). In reviewing a best-interest finding, appellate courts consider,
among other evidence, the factors set forth in Holley, 544 S.W.2d at 371–72.
Best Interest
A.G. does not challenge any of the statutory grounds for termination, and as a
result, the trial court’s findings related to those grounds are final. However, she does
question the sufficiency of the evidence to support the trial court’s best-interest finding.
To assess the trial court’s best-interest finding, we consider factors enumerated in
the non-exhaustive list set forth in section 263.307(b) of the Family Code. Additionally,
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the Supreme Court has set out other factors to consider when determining the best
interest of a child. See Holley, 544 S.W.2d at 371–72. Those factors 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 individual seeking custody; (5) the programs available to assist
the individual to promote the best interest of the child; (6) the plans for the child by the
individual 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. The absence of evidence of one or more of these factors does not
preclude a factfinder from reasonably forming a strong conviction or belief that termination
is in the child’s best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
Evidence that supports one or more statutory grounds for termination may also
constitute evidence illustrating that termination is in the child’s best interest. See id. at
28; see also In re E.C.R., 402 S.W.3d 239, 249–50 (Tex. 2013). The best-interest
analysis may consider circumstantial evidence, subjective factors, and the totality of the
evidence as well as direct evidence. See In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—
Amarillo 2011, no pet.). Additionally, a child’s need for permanence through the
establishment of a “stable, permanent home” has been recognized as the paramount
consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.
App.—Dallas 2007, no pet.).
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Analysis
Although A.G. does not challenge the trial court’s finding that she failed to comply
with the family service plan by performing all the required services to obtain the return of
her child, her performance under that plan is relevant to some of the Holley factors. In re
S.A.M., No. 04-18-00607-CV, 2019 Tex. App. LEXIS 1020, at *16 (Tex. App.—San
Antonio Feb. 13, 2019, pet. denied) (mem. op.). A parent’s actions or inactions with
regard to a family service plan is relevant to a child’s best interest. Id.The record establishes that A.G. began a history with the Department immediately
after her son’s birth and termination of her parental rights was delayed for approximately
four years. After four previous cases with the Department, the fifth case, which resulted
in termination, was the last resort available to safeguard A.G.’s child.
The evidence presented raises concerns about A.G.’s parental abilities to care for
her child and provide him with a safe and stable environment. The caseworker testified
that she repeatedly explained the Department’s service plan to A.G., who did not even
attempt to begin services until almost a year after suit for termination had been filed. Such
conduct shows a lack of inspiration to improve parenting skills. See Wilson v. State, 116
S.W.3d 923, 930 (Tex. App.—Dallas 2003, no pet.) (finding that a parent’s lack of
motivation improving parenting skills is evidence supporting a best-interest finding).
The evidence showed that A.G. was evicted from her apartment and did not work.
She relied solely on disability for financial support. She did not have a support network
to assist in caring for her child. Although A.G. acknowledged that incidents involving
domestic violence would not be a safe environment for her child, she intended to continue
the relationship with her paramour which caused safety concerns with the caseworker.
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A.G. also struggled with her sobriety and continued to use marihuana. She allowed her
child to be cared for by her stepfather. That resulted in the three-year-old child being left
alone and crossing a street by himself.
The caseworker established that the child has been with a relative placement, an
aunt, and is well-bonded with her and with other children in the home. The aunt is
providing a safe and stable home and is satisfying all the child’s needs. She has
expressed an interest in adoption. See In re U.P., 105 S.W.3d 222, 230 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied) (finding that when the child is too young to
articulate her desires, evidence of being well-cared-for and bonded with a family seeking
adoption supports the best-interest finding), overruled in part on other grounds, In re
L.C.L., 599 S.W.3d 79, 85 (Tex. App.—Houston [14th Dist.] 2020, pet. denied).
Based on the evidence presented, we conclude that the trier of fact could form a
firm conviction and belief that the best interest of the child supports termination of the
parental relationship. A.G.’s sole issue is overruled, and the trial court’s Order of
Termination is affirmed.
Per Curiam
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