in the Interest of T.S.W., a Child

Opinion filed March 31, 2022
In The
Eleventh Court of Appeals
__________
No. 11-21-00231-CV
__________
IN THE INTEREST OF T.S.W., A CHILD
On Appeal from the 1st Multicounty Court at Law
Nolan County, Texas
Trial Court Cause No. CC-8047
MEMORAND UM OPI NI ON
This is an appeal from an order terminating the parental rights of T.S.W.’s
parents. Only T.S.W.’s mother appealed. On appeal, she presents a single issue in
which she challenges the legal and factual sufficiency of the evidence to support the
trial court findings. We reverse and remand.
I. Factual and Procedural Background
Appellant, T.S.W.’s mother, is a member of the U.S. Army. At the time of
trial, she had served in the military for nine years, during which time T.S.W. lived
with the Martins.1 In 2012, when T.S.W. was three years old, Appellant decided to
join the military, and she voluntarily relinquished primary custody of T.S.W. to the
Martins. The court order to which Appellant and the Martins agreed provided for
Appellant to have standard possessory visitation but for the Martins to have primary
custody of T.S.W. The military required that an order such as this be in place;
Appellant could not enlist and have custody of a child because she was a single
parent and was subject to deployment. Appellant did in fact deploy numerous times
during the nine years prior to the filing of this suit.
After she enlisted in the military, Appellant visited T.S.W. in person once or
twice a year. She also communicated with T.S.W. from time to time via text
messages and FaceTime. Although Appellant acknowledged that she had the ability
to pay child support, she admitted that she had not done so. She testified that she
occasionally sent clothes to T.S.W. and that she had, on multiple occasions, offered
the Martins money. According to Appellant, the Martins refused to accept any
money from her. The Martins disputed Appellant’s testimony that she had offered
them money. According to the Martins, Appellant had not offered them any financial
support whatsoever, nor had the Martins ever asked Appellant to do so. All parties
acknowledged that their agreement in 2012, per the agreed court order, was that
Appellant was not obligated to pay any child support or provide health insurance for
T.S.W.
As T.S.W. got older, Appellant’s occasional visits became disruptive to
T.S.W.’s routine, and at some point, T.S.W. informed the Martins that she wanted
them to adopt her. As a consequence, the Martins filed this suit to terminate the
parental rights of T.S.W.’s parents and to adopt T.S.W. The trial court conducted a
1
For purposes of this opinion, we will refer to the appellees as “the Martins,” though that is not
their true name.
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hearing and, after considering the evidence presented, terminated the parental rights
of both parents based upon the findings it made pursuant to Section 161.001(b) of
the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2021).
The trial court found that Appellant had committed three of the acts listed in
Section 161.001(b)(1)—those found in subsections (C), (E), and (F). Specifically,
the trial court found that Appellant (1) had voluntarily left the child alone or in the
possession of another without providing adequate support of the child and remained
away for a period of at least six months, (2) had engaged in conduct or knowingly
placed the child with persons who engaged in conduct that endangered the child’s
physical or emotional well-being, and (3) had failed to support the child in
accordance with Appellant’s ability during a period of one year ending within six
months of the date that the petition was filed. 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 child. The trial court subsequently signed an order in which
it incorporated its termination findings and granted the Martins’ petition for
adoption. This appeal followed.
II. Termination Standards
To terminate one’s 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.
FAM. § 161.001(b). In her sole issue, Appellant challenges all three findings made
by the trial court pursuant to Section 161.001(b)(1), as well as the trial court’s best
interest finding. She asserts that the evidence is legally and factually insufficient to
support those findings.
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
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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). In this regard, 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.
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.
III. Analysis
As we stated above, the termination of one’s parental rights must be supported
by clear and convincing evidence. FAM. § 161.001(b). We carefully scrutinize
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termination proceedings, and we strictly construe involuntary termination statutes in
the parent’s favor. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012).
A. Termination under Section 161.001(b)(1)(C)
The trial court found that Appellant voluntarily left T.S.W. alone or in the
possession of another without providing adequate support of the child and remained
away for a period of at least six months. See FAM. § 161.001(b)(1)(C). Although
the evidence, as set forth above, appears to support such a finding, the Texas
Supreme Court has determined that the language in subsection (C) is to be
interpreted to mean that the parent must “make arrangements for the adequate
support rather than personally support” the child. Holick v. Smith, 685 S.W.2d 18,
21 (Tex. 1985). The Martins concede, and we agree, that pursuant to Holick, the
evidence presented at trial is insufficient to support the trial court’s finding under
Section 161.001(b)(1)(C) because Appellant arranged for the adequate support of
T.S.W. See id.; see also Wetzel v. Wetzel, 715 S.W.2d 387, 389–90 (Tex. App.—
Dallas 1986, no writ). Thus, we hold that the evidence is legally insufficient to
support the trial court’s finding under subsection (C).
B. Termination under Section 161.001(b)(1)(E)
The trial court also found that Appellant had engaged in conduct or knowingly
placed T.S.W. with persons who engaged in conduct that endangered the child’s
physical or emotional well-being. See FAM. § 161.001(b)(1)(E). Under subsection
(E), the relevant inquiry is whether evidence exists that the endangerment of the
child’s well-being was the direct result of the parent’s conduct, including acts,
omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex. App.—Eastland
2011, no pet.). The offending conduct need not be directed at the child, nor does the
child actually have to suffer an injury. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
Additionally, termination under subsection (E) must be based on more than a single
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act or omission; a voluntary, deliberate, and conscious course of conduct by the
parent is required. In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000,
pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no
pet.).
Based upon the evidence presented at the termination hearing, we hold that
the Martins failed to present clear and convincing evidence to support an affirmative
finding under subsection (E). First, nothing in the record indicates that Appellant
herself engaged in any conduct that endangered T.S.W. Second, the only inkling of
evidence to support a finding that Appellant placed T.S.W. with persons who
engaged in conduct that endangered T.S.W. are vague references to “CPS”
involvement when T.S.W. was approximately two years old and a statement from
Mrs. Martin who testified, “Somebody said that there was a sex offender living with
[Appellant].” With respect to the CPS case, Appellant testified that, while she went
to work, she left T.S.W. with two people whom she knew from school. Apparently,
someone, unbeknownst to Appellant, called CPS and reported that these two people
“were child molesters.”
Appellant testified that she did not know anything about her babysitters
allegedly being child molesters. Nothing in the record indicates that Appellant knew
about the allegations against the babysitters, that these babysitters were actually
“child molesters,” or that T.S.W. was endangered. Appellant testified that she “was
cleared” of the issues with CPS and that CPS dismissed the case. T.S.W. was then
returned to Appellant’s care, but as they had done since before T.S.W.’s birth, the
Martins continued to assist Appellant.
The Martins had helped Appellant “off and on her whole life really.” In fact,
Mrs. Martin testified that Appellant “wanted to be a good mom.” When Appellant
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later enlisted in the military, she voluntarily placed T.S.W. with the Martins, who
took very good care of T.S.W.
The record before us does not contain clear and convincing evidence that
Appellant either engaged in conduct or knowingly placed T.S.W. with persons who
engaged in conduct that endangered T.S.W.’s physical or emotional well-being. See
FAM. § 161.001(b)(1)(E). Viewing all of the evidence in the light most favorable to
the trial court’s finding, we conclude that a rational trier of fact could not have
formed a firm belief or conviction that a finding under subsection (E) was true.
Accordingly, we hold that the evidence is legally insufficient to support the trial
court’s finding under subsection (E). See, e.g., In re F.E.N., 542 S.W.3d 752, 763–
65 (Tex. App.—Houston [14th Dist.] 2018), pet. denied, 579 S.W.3d 74 (Tex. 2019)
(per curiam).
C. Termination under Section 161.001(b)(1)(F)
Finally, the trial court found that Appellant had failed to support T.S.W. in
accordance with Appellant’s ability to do so during a period of one year ending
within six months of the date that the petition for termination was filed. The
evidence was uncontroverted that Appellant failed to support T.S.W. in accordance
with Appellant’s ability to do so. Appellant testified that her net salary was
approximately $5,000 per month. Although there was some evidence that Appellant
had occasionally sent clothes to T.S.W. and had offered some money to the Martins
for T.S.W.’s support, the Martins denied that Appellant ever offered them any money.
Thus, the trial court could have found by clear and convincing evidence that
Appellant had the ability, but failed, to support T.S.W.
However, while evidence of Appellant’s failure to provide financial support,
without more, seems to support the trial court’s finding under subsection (F), we
cannot uphold that finding under the circumstances in this case. We acknowledge
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that each parent has a duty to support his or her child. FAM. § 151.001(a)(3) (West
2014). However, the parent’s duty to do so is subject to a court order that affects the
parent’s duties. Id. § 151.001(d)(1). Here, the Martins had agreed, pursuant to the
2012 trial court order under which the parties had operated for nine years, that
Appellant was released from her duty to provide financial support for T.S.W.
Therefore, Appellant was excused from her duty and responsibility to financially
support T.S.W. See In re P.A.O., No. 08-98-00436-CV, 2001 WL 175620, at *11
(Tex. App.—El Paso Feb. 22, 2001, pet. denied); Wetzel, 715 S.W.2d at 390–91. In
P.A.O., the court of appeals held, under similar circumstances, that “when a parent
complies with a court order which excuses her from her duty to support the child,
then the failure to pay child support in accordance with her ability cannot constitute
a ground for termination of [her] parental rights.” 2001 WL 176520, at *11 (citing
Wetzel, 715 S.W.2d at 390–91). Such is the case here.
D. Best Interest
Because we have held that the evidence in this case is insufficient to support
the findings made by the trial court pursuant to Section 161.001(b)(1), we need not
address Appellant’s challenge to the trial court’s best interest finding. See TEX. R.
APP. P. 47.1. However, in the event that we are mistaken in our holdings pursuant
to Section 161.001(b)(1), we will also address Appellant’s complaint that the
evidence is insufficient to support the trial court’s best interest finding.
In her sole issue on appeal, Appellant additionally challenges the legal and
factual sufficiency of the evidence to support the trial court’s finding that termination
of her parental rights would be in the best interest of T.S.W. See FAM.
§ 161.001(b)(2). With respect to T.S.W.’s best interest, the evidence, as set forth
above, shows that T.S.W. wished to be adopted by the Martins and that the Martins
filed a petition to adopt her. The record shows that when Appellant enlisted in the
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military, she left T.S.W. in the capable and caring hands of the Martins. The Martins
had helped Appellant even before the birth of T.S.W. and were willing to help her
raise T.S.W. so that Appellant could serve our country in the military. Appellant has
neither filed a petition to modify conservatorship nor has she sought to take T.S.W.
away from the Martins; however, Appellant does not want her parental rights to be
terminated. That Appellant’s visits, as T.S.W. became older, interrupted T.S.W.’s
“routine” does not show that T.S.W.’s best interest is served by terminating
Appellant’s rights altogether. In fact, the record shows that there are benefits that
T.S.W. would be eligible for as the daughter of a member of the military.
In light of the evidence presented at trial and applying the Holley factors, we
hold that the trial court could not reasonably have formed a firm belief or conviction
that termination of Appellant’s parental rights would be in the best interest of T.S.W.
See Holley, 544 S.W.2d at 371–72. Upon considering the record as it relates to the
desires of the child, the emotional and physical needs of the child now and in the
future, the emotional and physical danger to the child now and in the future, the
parental abilities of those involved, and the plans for the child by the parties
involved, we further hold that the evidence is legally and factually insufficient to
support the trial court’s finding that termination of Appellant’s parental rights is in
the best interest of T.S.W. See id. While we commend the Martins for all that they
have done and continue to do for T.S.W. and understanding that they have assumed
the role of T.S.W.’s parents in Appellant’s absence, we cannot hold in this case that
the trial court’s finding as to best interest is supported by clear and convincing
evidence. For this reason alone, we would be required to sustain Appellant’s sole
issue on appeal even if the evidence were sufficient to support the trial court’s
findings under Section 161.001(b)(1)(C), (E), or (F).
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Further, we note that Appellant does not challenge the trial court’s
appointment of the Martins as T.S.W.’s joint managing conservators. Accordingly,
this court’s opinion and judgment are not to be read to alter the trial court’s
appointment of the Martins as the managing conservators of T.S.W. See In re J.A.J.,
243 S.W.3d 611, 615–17 (Tex. 2007) (holding that a parent’s appellate challenge to
parental termination did not encompass a challenge to the appointment of managing
conservator).
IV. This Court’s Ruling
We reverse the trial court’s termination order insofar as it terminated the
parental rights of T.S.W.’s mother. Because we have reversed the termination order
with respect to Appellant’s parental rights, we must also set aside the trial court’s
order granting the Martins’ petition for adoption. Accordingly, this cause is
remanded to the trial court for any further proceedings that may be necessary.
W. STACY TROTTER
JUSTICE
March 31, 2022
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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