in the Interest of S.S., a Child

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00309-CV
IN THE INTEREST OF S.S., A CHILD
On Appeal from the 100th District Court
Hall County, Texas
Trial Court No. 7833; Honorable Stuart Messer, Presiding
February 6, 2020
MEMORANDUM OPINION
Before PIRTLE, PARKER, and DOSS, J.J.
Appellants, Stephen and Ashley appeal the trial court’s order terminating their
parental rights to S.S., their four-year old daughter.1 Via several issues, Stephen argues
the evidence was insufficient to support the grounds on which the trial court terminated
his parental rights and was insufficient to support the trial court’s finding under the Texas
Family Code that it was in S.S.’s best interest to terminate his parental rights. Through
one issue, Ashley asserts the evidence was insufficient to support the trial court’s finding
1 To protect the privacy of the parties involved, we refer to the mother and father by their first name
only and to the child by her initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2018); TEX. R.
APP. P. 9.8(b).
under the Texas Family Code that it was in S.S.’s best interest to terminate her parental
rights. We affirm the order of the trial court.
BACKGROUND
The Texas Department of Family and Protective Services became involved with
the family in November 2017 when it received a report of negligent supervision of S.S.
and that Ashley and Stephen were using methamphetamine and engaging in domestic
violence. When an investigator went to the home, he learned that Ashley was receiving
treatment at a local in-patient mental health facility because she had attempted to cut
herself in the neck with a piece of glass. When the investigator later spoke with Ashley,
she admitted she and Stephen used methamphetamine and that the two had a history of
domestic violence. Ashley submitted to a drug screen and the result was positive for
methamphetamine. S.S. was also tested. Her results were negative. Stephen did not
appear for his initial drug screening but later submitted to one. That drug screen result
was not available at the time of the final hearing held in the summer of 2019.
Neither Ashley nor Stephen appeared for the final hearing. Both of their attorneys
were present and told the court each party had received notice of the hearing. The
attorneys also told the court of their efforts to communicate with the parents. The
attorneys told the court that Ashley was living in Florida and that Stephen had been living
in Oklahoma but had recently returned to Texas. At the time of the final hearing, S.S.
was living with a maternal aunt in New York and was doing very well and had bonded to
the family. According to the Department witnesses, both parents were happy with that
placement and wanted the child to remain there. The aunt expressed a desire to adopt
S.S.
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The Department called as witnesses three employees of the Department: two
investigators and a case worker. Department personnel testified the mother continued to
use methamphetamine throughout the pendency of the case. The mother had a history
of mental health issues and time spent at the local mental health treatment facility. The
parents did not visit S.S., did not stay in contact with S.S., did not inquire as to S.S.’s well-
being, and did not make required child support or medical payments for S.S. Department
personnel also testified that both parents signed a service plan that included the tasks
necessary to secure return of S.S. to their care. Neither parent completed those tasks.
The father completed an anger management class and submitted to drug screening. He
also completed a psychiatric evaluation but did not participate in any of the
recommendations following that evaluation.
All of the witnesses and the attorney ad litem for S.S. recommended termination
of Ashley’s and Stephen’s parental rights because it was in S.S.’s best interest. At the
conclusion of the hearing, the court found sufficient evidence to terminate the parents’
parental rights under several predicate grounds contained in the Texas Family Code. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(B), (D), (E), (F), (N), (O), (P) (West 2019). It also
found clear and convincing evidence to support a finding that termination of the parents’
rights was in S.S.’s best interest. Id. at § 161.001(b)(2).
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); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Accordingly, termination
proceedings are strictly construed in favor of the parent. In re E.R., 385 S.W.3d 552, 563
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(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 preserve those
rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The Due Process Clause of the United
States Constitution and section 161.001 require application of the heightened standard
of “clear and convincing evidence” in cases involving involuntary termination of parental
rights. See In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256,
263 (Tex. 2002).
In a legal sufficiency challenge, we credit evidence that supports the verdict if
reasonable jurors could have done so and disregard contrary evidence unless reasonable
jurors could not have done so. In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014).
However, the reviewing court should not disregard undisputed facts that do not support
the verdict to determine whether there is clear and convincing evidence. Id. at 113. In
cases requiring clear and convincing evidence, evidence that does nothing more than
raise surmise and suspicion will not suffice unless that evidence can produce in the mind
of the fact finder 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 that must be proven is true, then the
evidence is legally insufficient. Id. (citing In re J.F.C., 96 S.W.3d at 266).
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). 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. Id. We also consider whether
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disputed evidence is such that a reasonable fact finder could not have resolved the
disputed evidence in favor of its finding. Id. If, considering 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,
then the evidence is factually insufficient. Id.
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) and that termination of that relationship is in the
best interest of the child. See TEX. FAM. CODE ANN. § 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. at § 101.007.
Only one statutory ground is required to support termination. In re K.C.B., 280
S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009, pet. denied). Although evidence
presented may be relevant to both the statutory grounds for termination and best interest,
each element must be established separately and proof of one element does not relieve
the burden of proving the other. See In re C.H., 89 S.W.3d at 28.
ANALYSIS—SUFFICIENCY OF EVIDENCE
Through several issues, Stephen argues the evidence presented at the final
hearing was not sufficient to support the trial court’s termination of his parental rights
under the predicate grounds. Ashley does not challenge the sufficiency of the evidence
supporting the predicate grounds under which her rights were terminated.
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Here, the Department alleged, and provided evidence of, several predicate
grounds under which the trial court could have terminated Stephen’s parental rights.
While only one statutory ground is required to terminate parental rights, we must address
Stephen’s complaints that the evidence is legally and factually insufficient to support the
trial court’s findings under subsections (D) and (E). See In re N.G., 577 S.W.3d 230, 232-
33 (Tex. 2019) (per curiam) (finding due process and due course of law require an
appellate court to address grounds (D) and (E) when raised by the parent on appeal and
must also detail its analysis under those grounds).
Here, the trial court found, among other grounds, that the Department established
by clear and convincing evidence that Ashley and Stephen had knowingly placed or
allowed S.S. to remain in conditions or surroundings which endangered the child’s
physical or emotional well-being. TEX. FAM. CODE ANN. § 161.001(b)(1)(D). The trial court
also found by clear and convincing evidence that they engaged in conduct or knowingly
placed S.S. with persons who engaged in conduct which endangered S.S.’s physical or
emotional well-being. Id. at § 161.001(b)(1)(E).
Subsection 161.001(b)(1)(D) permits termination when clear and convincing
evidence shows that the parent “knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endanger the physical or emotional well-being
of the child.” Id. at § 161.001(b)(1)(D). Subsection (D) requires a showing that the
environment in which the child was placed posed a danger to the child’s physical or
emotional health, and it permits termination based on a single act or omission by the
parent. In re K.C.F., No. 01-13-01078-CV, 2014 Tex. App. LEXIS 6131, at *32-34 (Tex.
App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.) (citation omitted). Subsection
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(D) concerns the child’s living environment, rather than the parent’s conduct, though
parental conduct may produce an endangering environment. Jordan v. Dossey, 325
S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). It is not necessary
that a parent’s conduct be directed at the child or that the child be injured, but the parent
must at least be aware of the potential for danger to the child in such an environment and
the fact finder must find that the parent disregarded that risk. In re S.M.L., 171 S.W.3d
472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Illegal drug use and criminal
activity support a conclusion that the child’s surroundings endanger her physical or
emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). The relevant time frame under this subsection is prior to the child’s removal (i.e.,
while the child is living in that environment). In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—
Texarkana 2013, pet. denied).
Subsection (E) permits termination when clear and convincing evidence shows
that the parent has engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the child's physical or emotional well-being. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(E). The relevant inquiry here is whether evidence
exists that the endangerment of the child’s physical or emotional well-being was the direct
result of the parent’s conduct, including acts, omissions, and failures to act. In re J.T.G.,
121 S.W.3d at 125. Termination under subsection (E) must be based on more than a
single act or omission. Id. That is, a voluntary, deliberate, and conscious course of
conduct by a parent is required. Id. Thus, while both subsections (D) and (E) focus on
endangerment, they differ regarding the source and proof of endangerment. In re S.M.L.,
171 S.W.3d at 477. To support a finding of endangerment under subsection (E), the
parent’s conduct does not necessarily have to be directed at the child nor is the child
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required to actually suffer injury. Texas Dep’t of Human Services v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987) (reversing appellate court’s holding that father’s imprisonment did
not endanger the emotional and physical well-being of a child).
Here, neither Stephen nor Ashley testified at the final hearing. Instead,
Department employees testified Ashley told them she and Stephen used
methamphetamine together. According to their testimony, Ashley said she had been
smoking methamphetamine for two months and Stephen had been “shooting it with
needles” for over a year. Ashley’s drug test confirmed her use with a positive result for
methamphetamine. S.S.’s test result was negative. Stephen initially failed to submit to a
drug test and the result of his later test was not available at the time of the final hearing.
Ashley also told Department employees of domestic violence incidents between
herself and Stephen. A Department employee testified Ashley admitted to “ongoing
domestic violence in the home, past and present.” Ashley said the reason she was being
treated at a mental health facility was because she tried to cut herself in the neck with
glass from a picture frame after an argument with Stephen. Stephen did not discuss any
of these allegations with the Department and he did not testify at the final hearing.
The record does, however, indicate S.S. was in Stephen’s care while Ashley was
receiving mental heath care and the child appeared “physically plump, healthy” when the
Department investigator conducted an unannounced visit to the home. This, Stephen
argues, shows he did not place S.S. in endangering conditions or engage in endangering
conduct. Given the evidence before the court that Stephen used methamphetamine, a
circumstance we find endangered the well-being of the child, we cannot agree with his
contention. Further, Stephen and S.S. were with Stephen’s father while Ashley was being
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treated and Stephen’s father used marijuana and was, according to Stephen, an
alcoholic. Given the other evidence before the court, we find the trial court could have
found sufficient evidence to support a finding regarding the predicate grounds set forth
under (D) and (E) despite the observation that S.S. appeared healthy.
Furthermore, domestic violence and drug use are circumstances the trial court can
consider as endangering under subsections (D) and (E). In re K.A.F., No. 05-12-01582-
CV, 2013 Tex. App. LEXIS 7350, at *33-34 (Tex. App.—Dallas June 14, 2013, no pet.)
(mem. op.). See also In re M.V., 343 S.W.3d 543, 547 (Tex. App.—Dallas 2011, no pet.)
(permitting children to remain in abusive environment created by domestic violence
supports termination of parental rights under subsections (D) and (E)). Many courts have
noted that a parent’s ongoing drug use is conduct that subjects a child to a life of
uncertainty and instability, which endangers the physical and emotional well-being of the
child. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). See also In re K.A.S., No. 07-12-
00234-CV, 2012 Tex. App. LEXIS 8725, at *16-17 (Tex. App.—Amarillo Oct. 18, 2012,
no pet.) (mem. op.); In re A.B., 125 S.W.3d 769, 777 (Tex. App.—Texarkana 2003, pet.
denied) (“Drug use and its effect on a parent’s life and ability to parent may establish an
endangering course of conduct.”). “A parent’s continued drug use demonstrates an
inability to provide for the child’s emotional and physical needs and to provide a stable
environment for the child.” In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet.
denied) (citing In re F.A.R., No. 11-04-00014-CV, 2005 Tex. App. LEXIS 234, at *4 (Tex.
App.—Eastland Jan. 13, 2005, no pet.) (mem. op.)). Thus, the trial court, as fact finder,
could have been persuaded that Stephen’s drug use and history of domestic violence
was sufficient to establish the predicate grounds set forth in section 161.001(b)(1)(D) and
(E) of the Family Code.
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We also note that neither parent completed the services required to secure the
return of S.S. to their care. The record shows that while Stephen and Ashley completed
some of the services required of them, they each failed to complete all of them. Failure
to complete the requirements of a service plan may be considered as part of the
endangering conduct analysis under subsection (E). In re X.S., No. 07-17-00422-CV,
2018 Tex. App. LEXIS 2735, at *9-10 (Tex. App.—Amarillo April 18, 2018, no pet.) (mem.
op.); Robinson v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686-87
(Tex. App.—Houston [1st Dist.] 2002, no pet.).
Based on this record, we find the evidence was sufficient to permit the trial court
to find by clear and convincing evidence that Stephen knowingly placed or allowed S.S.
to remain in endangering conditions or surroundings and engaged in endangering
conduct.2 TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). Accordingly, we overrule
Stephen’s second, third, fourth, fifth, sixth, seventh, and eighth issues.
ANALYSIS—BEST INTEREST
Both parents challenge the sufficiency of the evidence supporting the trial court’s
finding that termination of their parental rights under the Family Code was in S.S.’s best
interest. In that regard, to support termination of their parental rights, the Department
was required to prove by clear and convincing evidence that termination of Ashley’s and
Stephen’s parental rights was in S.S.’s best interest. Id. at § 161.001(b)(2); In re K.M.L.,
443 S.W.3d at 116. Only if no reasonable fact finder could have formed a firm belief or
conviction that termination of the parents’ parental rights was in the child’s best interest
2Having found sufficient evidence to support the trial court’s termination of parental rights under
subsections (D) and (E), we need not address Stephen’s remaining contentions regarding the grounds
under which the trial court terminated his rights. In re K.C.B., 280 S.W.3d at 894-95.
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can we conclude the evidence is insufficient. In re K.M.L., 443 S.W.3d at 116 (citing In
re J.F.C., 96 S.W.3d at 266). The fact finder must make a best interest determination
with respect to each parent independently.
In making a best interest determination, there is a strong presumption that the best
interest of the child will be served by preserving the parent-child relationship. In re R.R.,
209 S.W.3d 112, 116 (Tex. 2006). Prompt and permanent placement of the child in a
safe environment is also presumed to be in the child’s best interest. See TEX. FAM. CODE
ANN. § 263.307(a). Section 263.307(b) provides a non-exhaustive list of factors a fact
finder may consider in deciding the best interest of a child. Similarly, the Supreme Court
has set out other factors a fact finder might 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.
Importantly, the absence of evidence about one or more of these considerations does not
preclude a fact finder 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; In re A.C., 394
S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
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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 In re
C.H., 89 S.W.3d 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.).
As set forth in our discussion of the evidence supporting the predicate grounds on
which the trial court terminated the parents’ rights, evidence showed both parents used
methamphetamine. Also discussed above, Ashley told Department personnel that she
and Stephen had engaged in incidents of ongoing domestic violence.
The record further shows Ashley had a history of mental health issues, sometimes
requiring treatment at a mental health facility. She had, on at least one occasion,
threatened to harm herself. And, the record includes many instances of unusual behavior
for which authorities were contacted. Further, the record shows other incidents of the
unstable nature of Ashley’s life. At the time of the final hearing, Ashley was living on a
“come-and-go” basis with her mother in Florida. The caseworker testified Ashley’s
mother’s home was not an appropriate placement for S.S. due to the mother’s criminal
history and her involvement with CPS in Florida. The caseworker also told the court
Ashley was not employed and had not been employed since prior to S.S.’s removal.
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Stephen also lived an unstable life. While he had lived in Oklahoma for the majority
of the time in which this case was pending, at the time of the final hearing, he was living
with his father in Dalhart, Texas. While in Oklahoma, Stephen lived with an aunt, then
another relative, and then was homeless.
At the time of the final hearing, S.S. was four years old. When a child is too young
to express her desires, the fact finder may consider whether the child has bonded with
the foster family. Additionally, the fact finder may consider whether the child is well cared
for by her current caregivers, and whether she has spent significant or minimal time with
a parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no
pet.).
Here, S.S. had been living with her maternal aunt and her husband in New York
for thirteen months, was bonded to the family, and doing well. The aunt expressed a
desire to adopt S.S. and was anxious to begin that process. Both Stephen and Ashley
told the caseworker they were happy with S.S.’s placement and desired for her to remain
there. Neither parent appeared at the final hearing and thus, we have no evidence before
us of their plans for the child should she be returned to either one of them. Both parents
lived outside the local area and neither parent maintained significant contact with S.S.
Neither parent called regularly to check on the child and the caseworker agreed that there
were periods in which months would go by with no contact from either parent.
Furthermore, neither parent paid their court-ordered child support or medical support
payments. As previously mentioned, neither Ashley nor Stephen completed all of the
services required of them to secure return of S.S. to their care. In addition, all three
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Department witnesses recommended that the trial court terminate the parents’ rights on
the basis that termination of those rights was in S.S.’s best interest.
The record contains significant evidence in favor of the trial court’s finding that
termination of Ashley’s and Stephen’s parental rights was in S.S.’s best interest.
Accordingly, we conclude any evidence that the court could have considered supporting
a finding that termination was not in S.S.’s best interest was not so significant as to make
that contrary finding unreasonable. See In re J.F.C., 96 S.W.3d at 266 (standard for
factual insufficiency). Therefore, we find the evidence presented was legally and factually
sufficient to support the trial court’s finding that termination of Stephen’s and Ashley’s
parental rights was in the best interest of the child. Resultantly, we resolve Ashley’s sole
issue against her and we overrule Stephen’s first issue.
CONCLUSION
Having resolved each of the parents’ issues against them, we affirm the order of
the trial court.
Patrick A. Pirtle
Justice
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