in the Interest of E.G., a Child

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-20-00189-CV
________________________
IN THE INTEREST OF E.G., A CHILD
On Appeal from the County Court at Law Number 1
Randall County, Texas
Trial Court No. 76,574-L1; Honorable Jack Graham, Presiding
December 31, 2020
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
MEMORANDUM OPINION
Appellant, A.G., appeals from an order terminating her parental rights to a child,
E.G. 1 In two issues, she argues (1) the associate judge of the trial court erred by failing
to return this case to the referring court for trial on the merits following a timely objection
by the Texas Department of Family and Protective Services pursuant to Family Code
section 201.005 and (2) the trial court erred in determining the evidence was sufficient
1To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM.
CODE ANN. § 109.002(d) (West Supp. 2019); TEX. R. APP. P. 9.8(b). The parental rights of E.G.’s father
were also terminated in this proceeding. However, he is not a party to this appeal.
under a clear and convincing standard to show termination of A.G.’s rights was in E.G.’s
best interest. We will affirm.
BACKGROUND
The Department filed suit seeking to terminate A.G.’s parental rights to E.G., a
child four years old by the time of the hearing. In its original petition, the Department
averred, “Petitioner objects to the assignment of this matter to an associate judge for a
trial on the merits or presiding at a jury trial.” Notwithstanding this objection, the parties
subsequently tried the case before an associate judge. See TEX. FAM. CODE ANN. §§
201.005 (allowing parental termination cases to be referred to an associate judge);
201.007 (establishing the powers of an associate judge).
A police officer with the Amarillo Police Department testified he received a call in
August 2019 regarding a stolen pickup. The owner identified A.G. as the person who
stole his pickup and that three-year-old E.G. was present at the time of the theft. At that
time, the officer placed A.G. and E.G. in his patrol car with the window down. A.G. got
out of the patrol car through the window, leaving E.G. in the patrol car, and tried to get
away on foot; however, A.G. was subsequently apprehended. The arresting officer noted
A.G.’s erratic behavior and believed she was under the influence of narcotics. A.G. then
admitted to the officer she had used methamphetamine. The officer further testified he
believed A.G. admitted she had stolen the pickup and another vehicle.
A Randall County Sheriff’s deputy testified to an earlier interaction in March 2015
with A.G and the father of the child. He told the court he was responding to a report of
an assault with a gun. During this encounter, A.G. told the deputy E.G.’s father had
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assaulted her. He observed that she had suffered several wounds and had blood in her
hair. The father also had lacerations and, according to the deputy, smelled like alcohol
and vomit. The father was taken to the hospital to receive stitches. According to the
father, A.G. “was the aggressor in the argument.” However, the deputy noted that the
father was categorized as “assaultive” in their law enforcement database.
The deputy also related another instance in which he was involved with A.G. and
the father. In early July 2017, the deputy responded to a call regarding an animal. While
he was driving, he saw a female standing next to a four-door black car. She waved the
deputy down. He identified the female as A.G. from his previous interactions with her.
He also identified the father. A.G. told the deputy she waved him down because she and
the father had gotten into an argument while driving. They had been drinking at a park
prior to the argument. As they were driving, A.G. told the father to get out of the car. E.G.
was in the vehicle with her parents at the time. The deputy noted the father had “a bloody
nose.” A.G. was taken to the hospital for her injuries. The deputy also testified A.G. and
the father had a blood alcohol concentration that was “almost double the legal limit.”
Another deputy testified A.G. was “aggressive and argumentative” during his interaction
with her. He said A.G. was arrested for assault family violence as a result of that incident.
A Department caseworker testified she worked with the family following A.G.’s
arrest in 2017. During that time period, both A.G. and the father provided positive initial
drug screens. A.G. completed the family-based services in October 2018 and the case
was closed. Another employee of the Department, an investigator, testified she became
involved with the family after A.G. was again arrested in 2019. While A.G. was in jail,
E.G. was placed in the custody of A.G.’s grandfather. The Department subsequently
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sought temporary managing conservatorship of E.G. when A.G.’s grandfather was no
longer able to care for the child. 2 At that time, none of A.G.’s suggested placements were
willing to care for E.G. Therefore, E.G. was placed with maternal cousins and was “doing
wonderfully.” E.G. was bonded to the parents and other children in the home and the
parents wished to adopt E.G. in the event A.G.’s parental rights were terminated.
Another Department caseworker testified she began to work with A.G. in August
2019. A.G. told her she had mental health issues, primarily depression, that caused her
to engage in criminal behavior. The caseworker then prepared a service plan for A.G.,
but she refused to sign it. A.G. remained incarcerated throughout the pendency of the
Department’s case, causing her ability to complete the necessary services to be limited,
although she did complete a parenting class while incarcerated. 3 The mother admitted
her crime and admitted she pleaded guilty and would possibly remain incarcerated for
three years. She also failed to indicate any plan of care for E.G. while she was
incarcerated. The caseworker opined that the mother was not able to provide for E.G.’s
emotional or physical needs and could not provide a safe home for E.G.
An investigator with the Department testified she visited the home where A.G. had
been living with E.G. prior to A.G.’s 2019 arrest. She also went to A.G.’s home four days
after she had been arrested. She described the home as being “very chaotic. There was
multiple food and spoiled milk out on counters. There was stuff piled in the sink with the
sink with nasty water in it. There was clothes everywhere on the floor. You could hardly
2 The grandfather was also caring for A.G.’s two older children.
3The record indicates A.G.’s ability to complete her services was also hindered by the COVID-19
pandemic.
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see the floor itself. There was rotten food with mold on it. It—it did not look like a safe
living condition.” The investigator noted also there “was a broken glass on the kitchen
floor, all throughout most of the kitchen.”
In addition, A.G. testified on her own behalf. She indicated her desire was that her
parental rights not be terminated and that E.G. remain in her current placement while she
was incarcerated. She also told the court she did not want her rights to E.G. to be
terminated because “I love my kid. I can take care of her. And I’m going to do as good
as I can do.” When asked whether she believed it would hurt E.G. if her rights were
terminated, A.G. said she believed it would “[b]ecause she’s my daughter.” A.G. did not
elaborate further.
The attorney ad litem for E.G. recommended termination of A.G.’s parental rights,
stating, “I do believe it to be in the child’s best interest that both the mother and the alleged
father’s parental rights be terminated.” The associate judge then announced his findings
and terminated A.G.’s parental rights to E.G.
ANALYSIS
STANDARD OF REVIEW
The natural right existing between parents and their children is of constitutional
dimension. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d
599 (1982). See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently,
termination proceedings are strictly construed in favor of the parent. In re E.R., 385
S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are not absolute, and it is
essential that the emotional and physical interests of a child are not sacrificed merely to
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preserve those rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002); In re A.B., 437 S.W.3d
498, 503 (Tex. 2014). The Due Process Clause of the United States Constitution and the
Texas Family Code require an application of the heightened standard of “clear and
convincing evidence” in cases involving involuntary termination of parental rights. See In
re N.G., 577 S.W.3d 230, 235 (Tex. 2019); TEX. FAMILY CODE ANN. § 161.206(a) (West
2014).
A legal-sufficiency review of a finding that must be proven by clear and convincing
evidence requires the reviewing court to review the evidence in the light most favorable
to the finding to determine whether a reasonable fact finder could form a firm belief or
conviction that the finding was true. In re Stoddard, No. 19-0561, 2020 Tex. LEXIS 1154,
at *16, (Tex. Dec. 18, 2020). Therefore, in a legal sufficiency challenge, we credit
evidence that supports the verdict if a reasonable fact finder could have done so and
disregard contrary evidence unless a reasonable fact finder could not have done so. In
re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014). However, as the reviewing court we
should not disregard undisputed facts that do not support the verdict to determine whether
there is clear and convincing evidence. Id. at 113. Therefore, in cases requiring clear
and convincing evidence, evidence that does no more than raise surmise and suspicion
will not suffice unless that evidence is capable of producing a firm belief or conviction that
the allegation is true. Id. If, after conducting a legal sufficiency review, a court determines
that no reasonable fact finder could form a firm belief or conviction that the matter to be
proven is true, then the evidence is legally insufficient. Id. (citing In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002).
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A factual sufficiency review is premised on consideration of the entire record. In
re Stoddard, 2020 Tex. LEXIS 1154, at *16-17. In a factual sufficiency review, a court of
appeals must give due consideration to evidence that the fact finder could reasonably
have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266 (citing In re C.H.,
89 S.W.3d at 25). In such a review, we must determine whether the evidence is such
that a fact finder could reasonably form a firm belief or conviction about the truth of the
Department's allegations. In re J.F.C., 96 S.W.3d at 266. In doing so, we consider
whether disputed evidence is such that a reasonable fact finder could not have resolved
that disputed evidence in favor of its finding. Id. 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 that the finding was true, then the evidence is factually insufficient. Id.
ISSUE ONE—ERROR PURSUANT TO OBJECTION UNDER SECTION 201.005
Through her first issue, A.G. argues the associate judge erred by failing to return
this case to the referring court for trial on the merits after the Department timely filed an
objection pursuant to Family Code section 201.005.
Section 201.005 provides as follows:
(a) Except as provided by this section, a judge of a court may refer to an
associate judge any aspect of a suit over which the court has jurisdiction
under this title, Title 1, Chapter 45, or Title 4, including any matter
ancillary to the suit.
(b) Unless a party files a written objection to the associate judge hearing a
trial on the merits, the judge may refer the trial to the associate judge. A
trial on the merits is any final adjudication from which an appeal may be
taken to a court of appeals.
(c) A party must file an objection to an associate judge hearing a trial on the
merits or presiding at a jury trial not later than the 10th day after the date
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the party receives notice that the associate judge will hear the trial. If an
objection is filed, the referring court shall hear the trial on the merits or
preside at a jury trial.
(d) The requirements of Subsections (b) and (c) shall apply whenever a
judge has authority to refer the trial of a suit under this title, Title 1,
Chapter 45, or Title 4 to an associate judge, master, or other assistant
judge regardless of whether the assistant judge is appointed under this
subchapter.
TEX. FAM. CODE ANN. § 201.005 (West 2015).
Here, the Department included in its Original Petition an objection to the
assignment of this matter to an associate judge. According to A.G.’s appellate brief, she
relied on the Department’s objection and asserts this matter was required to be heard by
the referring court. Because it was not, A.G. argues she is entitled to a new trial on the
merits before the referring court. However, we find the record indicates this issue is not
properly before us.
Judicial economy requires that a trial court have the opportunity to correct an error
before an appeal proceeds. In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999). Therefore,
as a prerequisite to the presentment of a complaint for appellate review, the record must
reflect that the complaint was made to the trial court by a timely request, objection, or
motion. TEX. R. APP. P. 33.1. Here, the record shows that neither party urged, mentioned,
or otherwise brought to the attention of the trial court the objection contained in the
pleadings at any time prior to or at the time of the final hearing. Further, A.G. did not file
a motion for new trial raising the issue of the failure to refer the matter back to the referring
court. As such, A.G. has failed to preserve this issue for our review. In re B.L.D. and
B.R.D., 113 S.W.3d 340, 350 (Tex. 2003); In re B.W., 99 S.W.3d 757, 760 (Tex. App.—
Houston [1st Dist.] 2003, no pet.) (citing Patir v. MFC Int’l. Corp., 60 S.W.3d 355, 357
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(Tex. App.—Houston [1st Dist.] 2001, no pet.) (requiring objection or otherwise bringing
to attention of the trial court an error that could have been cured if the trial court had been
given the opportunity to do so). We thus resolve this issue against A.G.
ISSUE TWO—SUFFICIENCY OF THE EVIDENCE TO SUPPORT BEST INTEREST FINDING
Via her second issue, A.G. argues the evidence was insufficient to support the trial
court’s finding that termination of her parental rights to E.G. was in the child’s best interest.
Texas Family Code section 161.001(b) permits involuntary termination of parental
rights if clear and convincing evidence supports that a parent engaged in one or more of
the twenty-one enumerated grounds for termination and that termination is in the best
interest of the child. In re N.G., 577 S.W.3d at 232 (citation omitted). In her brief, A.G.
challenges only the court’s finding regarding the sufficiency of the evidence to support the
conclusion that it was in E.G.’s best interest to terminate her parental rights. She does
not challenge the court’s findings as to the predicate grounds.
Only one predicate ground for termination is needed for the court to affirm
termination and an unchallenged finding of a predicate violation is binding and will support
the trial court’s judgment. In re S.L., 421 S.W.3d 34, 37 (Tex. App.—Waco 2013, no pet.).
Thus, A.G.’s failure to challenge the sufficiency of the evidence to support the trial court’s
findings on any of the predicate grounds waived any complaint regarding the sufficiency
of the evidence to support that predicate ground. In re T.A.P., No. 04-17-00137-CV, 2017
Tex. App. LEXIS 6636, at *7 (Tex. App.—San Antonio July 19, 2017, no pet.) (mem. op.);
In re C.P.V.Y., 315 S.W.3d 260, 269 (Tex. App.—Beaumont 2010, no pet.). Therefore,
the unchallenged predicate grounds support the termination of A.G.’s parental rights, and
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we turn to our analysis of the sufficiency of the evidence supporting the court’s best
interest finding.
In determining the best interest of a child, courts apply the non-exhaustive Holley
factors to shape their analysis. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976). Those factors include: (1) the desires of the child; (2) the present and future
emotional and physical needs of the child; (3) the present and future emotional and
physical danger to the child; (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 held by the individuals seeking custody of the child; (7) the stability of
the home of the parent and the individuals seeking custody; (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. Id. The foregoing factors
are not exhaustive, and “[t]he absence of evidence about some of [the factors] would 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 at 27. “A trier of fact may measure
a parent’s future conduct by his past conduct [in] determin[ing] whether termination of
parental rights is in the child’s best interest.” In re E.D., 419 S.W.3d 615, 620 (Tex. App.—
San Antonio 2013, pet. denied).
The record indicates A.G. has a significant history of domestic violence, drug and
alcohol use, untreated mental health issues, and criminal conduct. Most tellingly, the
record indicates E.G. was present during at least some of the instances in which A.G.
engaged in domestic violence, drug and alcohol use, and criminal behavior. In re L.G.R.,
498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (noting parent’s
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drug use supports a finding that termination is in best interest of the child); In re J.I.T.P.,
99 S.W.3d 841, 846 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (stating domestic
violence, even when the child is not the intended victim, supports finding that termination
is in the child’s best interest). The Department introduced documentary evidence of
A.G.’s criminal history that spanned many years and included assault causing bodily
injury, driving while intoxicated, assault involving family violence, felony unauthorized use
of a vehicle, felony escape while arrested or confined, and burglary of a habitation. The
trial court could have seen A.G.’s conduct as providing an unsafe and endangering
environment for the child, thereby supporting its finding that termination of A.G.’s parental
rights was in E.G.’s best interest. In re H.D., No. 01-12-00007-CV, 2013 Tex. App. LEXIS
5699, at *34 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.) (providing
that courts may consider in its determination of best interest the demonstration of lack of
adequate parenting skills, including the failure to provide child with safe physical home
environment).
E.G. was four years old at the time of trial and rather young to express her desires.
However, the record indicates she is doing well and is bonded with her caregivers who
plan to adopt her. See In re D.S.O., No. 04-14-00061-CV, 2014 Tex. App. LEXIS 6541,
at *19-20 (Tex. App.—San Antonio June 18, 2014, no pet.) (mem. op.) (relying on
evidence that child bonded with foster parents as evidence to support trial court’s best
interest finding); In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet.
denied) (stability and permanence are paramount in the upbringing of children). In
contrast, the record shows A.G. has not demonstrated she has the ability to effectively
and safely parent the child once she is released from prison. In re S.B., 207 S.W.3d 877,
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887-88 (Tex. App.—Fort Worth 2006, no pet.). The caseworker testified that A.G. had
demonstrated a poor pattern of decision-making and has repeatedly put E.G. at risk. See
In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.) (a parent’s
inability to provide adequate care for the child, lack of parenting skills, poor judgment, and
repeated instances of immoral conduct may also be considered when looking at best
interest). From the entire record, we find the trial court could have reasonably concluded
this evidence showed E.G.’s best interest would be served by terminating A.G.’s parental
rights and allowing adoption by E.G.’s caregivers.
A.G. did not challenge the predicate grounds on which termination of her parental
rights was based and has consequently conceded those grounds. Evidence supporting
those grounds may be considered in determining whether termination of parental rights
was in the child’s best interest. In re C.H., 89 S.W.3d at 28. As noted, evidence presented
at the hearing showed A.G. was involved in serious and repeated domestic violence, had
an unsafe home, engaged in substance abuse, engaged in criminal activity that led to
incarceration, had previous history with the Department, and had endangered E.G.
through her actions. The trial court could have concluded that these circumstances would
continue if E.G. was returned to A.G.’s care. In re J.D.B., 435 S.W.3d 452, 468 (Tex.
App.—Dallas 2014, no pet.) (fact finder may infer from past conduct endangering child’s
well-being that similar conduct will recur if the child is returned to the parent’s care). See
also Danet v. Bhan, 436 S.W.3d 793, 797-98 (Tex. 2014) (finding sufficient evidence to
support termination from evidence of misconduct in the more distant past, evidence of
more recent misconduct, and evidence of the stability of the child’s current placement).
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On our review of the record, we find the evidence is legally and factually sufficient
to support the trial court’s finding that termination of A.G.’s parental rights was in E.G.’s
best interest. Accordingly, we overrule A.G.’s second issue.
CONCLUSION
Having overruled each of A.G.’s issues, we affirm the Order of Termination.
Patrick A. Pirtle
Justice
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