M. L. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00700-CV
M. L., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 20TH DISTRICT COURT OF MILAM COUNTY
NO. CV40855, THE HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING
MEMORANDUM OPINION
In this suit involving termination of parental rights, appellant M.L.’s previous
counsel filed an Anders brief asserting that the appeal is without merit and that there are no
arguable grounds for reversal. See Anders v. California, 386 U.S. 738, 744–45 (1967); In re
P.M., 520 S.W.3d 24, 27 & n.10 (Tex. 2016) (per curiam). After reviewing the record, we
determined that at least one arguable ground for reversal existed, abated the appeal, and
remanded the case to the trial court for appointment of new counsel for M.L. (Mother). M.L. v.
Texas Dep’t of Fam. & Protective Servs., No. 03-22-00700-CV, 2023 WL 2603393 (Tex.
App.—Austin Mar. 23, 2023, no pet.) (mem. op.); see In re C.C., No. 04-19-00844-CV, 2020
WL 2139307, at *1 (Tex. App.—San Antonio May 6, 2020, no pet.) (mem. op.) (abating appeal
and remanding for appointment of new counsel).
Mother’s new counsel has filed a brief arguing that there is legally and factually
insufficient evidence to support the trial court’s findings regarding the two statutory predicate
grounds for termination and the child’s best interest, see Tex. Fam. Code § 161.001(b)(1)(D)
(endangerment through conditions or surroundings), (O) (failure to comply with court order),
(2) (best interest), and that Mother was deprived of her rights to due process, to a jury trial, and
to effective assistance of counsel. For the following reasons, we reverse the trial court’s decree
terminating Mother’s parental rights to J.J. (Child) and remand this case for further proceedings
consistent with this opinion.1
BACKGROUND
The following witnesses testified at the October 14, 2022 bench trial: Department
caseworker Lindsay Carver; Mother; and Mrs. Williams,2 the foster mother. No exhibits were
offered or admitted into evidence. Upon the Department’s request, the trial court took judicial
notice of the Department’s emergency-removal affidavit. The substantive portions of the
reporter’s record total thirty-two pages, two of which involve testimony pertaining solely
to Father.
Carver testified, relevantly, that Child was currently about nineteen months old
and had been in the same foster home since he was removed from “the home” at about two
months of age. Carver had been assigned to the case just a few months before trial and could
not recall the facts that necessitated Child’s removal except to state that “it was neglectful
supervision and physical neglect that we were dealing with.”
Carver testified that Child was doing “amazing” in the foster home and that the
foster family wants to adopt him. Mother was currently “not in compliance” with the family
1
The parental rights of Child’s father (Father) were also terminated, but he did
not appeal.
2
The reporter’s record does not indicate Mrs. Williams’s first name.
2
service plan because she had “not finished individual therapy,” telling her therapist that she
would not be continuing therapy because Child “was going to be adopted.” Although Mother
had completed other requirements—a psychological evaluation, a parenting class, and a
domestic-violence class—Carver believed that Mother “has not shown meaningful change or
implementation of any of those things.” Carver agreed with the representation of Department
counsel that Mother “has mental health problems” but did not specify further. Carver stated that
she believed it would be in Child’s best interest if Mother’s parental rights were terminated but
did not provide any further detail or explanation of such statement.
Carver explained that some of “her concerns” with Mother “are her mental health
needs.” She elaborated: Mother is “very reactive” and “very back and forth about her decision
making.” Carver testified that Child “is a small child that can not protect himself and I’m
concerned that [Mother] is not able to protect him.” Her “other concerns” were Mother’s “giving
up” on therapy because Mother believed it was pointless when Child was simply going to be
adopted as well as Mother’s failure to make “any change in [her] behavior.” Carver described
the last in-person visitation that Mother had with Child, in August 2022. After the visit, Mother
left the building “screaming,” causing Child to cry, and saying that she was going to “break
shit in the lobby,” seemingly because she was upset that Child did not appear to recognize her.
Thereafter the visitations resumed virtually, as they had proceeded previously due to COVID-19.
The weekly virtual visitations have been going well since then.
According to Carver, Mother’s psychological evaluation indicated a diagnosis of
PTSD and that she has a “severe” “overall level of disability,” but Carver did not further
elaborate on the type of disability. Carver stated that Mother had suffered a stroke several years
earlier, which necessitated the amputation of one of her legs. Mother now uses a motorized
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wheelchair and “has been using a live-in caregiver” to help her take care of herself and her
daily needs. Mother uses the bus for transportation because she lacks her own means of
transportation.
In her testimony, Mother admitted to sending some “very violent and
inappropriate text messages” to the caseworker, including the following: “y’all white bitches
love to take from black people. I hope somebody blows up the fucking white bitch.” She agreed
that throwing “temper tantrums has not helped” her to get the services she needs to obtain the
return of Child. Mother testified that she would not react the same way (i.e., engage in
“outbursts” and “temper tantrums”) should Child do something she doesn’t like because she had
since learned from her parenting classes about how to communicate with and appropriately
discipline a child who misbehaves, including using time outs and taking away toys.
Mother admitted that she had once informed her attorney that she wanted to
relinquish her parental rights to Child because her attorney “had violated her rights,” but then
after talking with her caseworker Mother realized that there had been a “misunderstanding” and
confirmed that she did not, in fact, want to relinquish her rights but to “fight” for them. Mother
said she had been temporarily influenced by a “fear factor” but that she loves her son and does
not want to give up her rights to him.
Mother testified that she is on “five different medications,” without specifying
which ones or for which conditions, and stated that she takes the medications as prescribed.
She acknowledged that her three separate “outbursts” at Department offices concerned the
Department. She explained that she stopped attending therapy because she felt that the
Department had “given up” on her and had “made up [its] mind” to let Child be adopted, which
made her feel hopeless and that there was no point in continuing therapy. Although Mother
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does not currently have a live-in caregiver, she has a neighbor who lives across the street who
helps her with her own care and transportation. She is able to provide for her financial needs
through the disability payments and food stamps she receives, and she has family support via her
sister. Although Mother continued to have contact with Father at the beginning of the case, she
had broken off contact with him since before 2022. Mother explained that she had not seen
Child in person much during the case because COVID-19 had required virtual visits for most of
the case’s duration.
Mrs. Williams testified that Child is healthy and up-to-date on his medical and
dental appointments. Child is the “first baby [she has] raised,” and Mrs. Williams admittedly
“might be a little more concerned than [she] should be” about how Child is doing
developmentally. Mrs. Williams believes that Child has always been “a little bit behind on
things,” but “he gets there,” and the caseworker and pediatrician had both told her to “give it
more time” and just “keep an eye on it,” specifically his verbal abilities and pointing to items that
he wants. In general, “everything else” is going well, and Child is eating foods and interacting
with the foster family.
After the close of evidence, Mother informed the court that she “ha[d] something
to say.”3 The court replied that “we are really beyond that point but [would] give [her] the
opportunity to say what [she has] to say.” Mother then stated that she wanted to represent herself
and fire her attorney. The court informed her that the “hearing is all but over” and the court had
“already ruled” to terminate her parental rights.
3
Earlier in the trial, towards the end of Carter’s (the first witness) testimony, Mother
stated, “Judge, I have something to say,” to which the court responded, “Hang on, ma’am, we
will get to you.”
5
STANDARD OF REVIEW
“Proceedings to terminate the parent-child relationship implicate rights of
constitutional magnitude that qualify for heightened judicial protection.” In re A.C., 560 S.W.3d
624, 626 (Tex. 2018). Parental rights have been characterized as “essential,” “a basic civil right
of man,” and “far more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). They are “perhaps the oldest of the
fundamental liberty interests” protected by the United States Constitution. Troxel v. Granville,
530 U.S. 57, 65 (2000); E.E. v. Texas Dep’t of Fam. & Protective Servs., 598 S.W.3d 389,
396 (Tex. App.—Austin 2020, no pet.). “When the State initiates a parental rights termination
proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.”
Santosky v. Kramer, 455 U.S. 745, 759 (1982). “Consequently, termination proceedings should
be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the
parent.” Holick, 685 S.W.2d at 20.
For a trial court to terminate a parent–child relationship, the Department must
prove two elements by clear and convincing evidence: (1) that the parent’s actions satisfy one
ground listed in Family Code Section 161.001(b)(1) and (2) that termination is in the child’s best
interest. Tex. Fam. Code § 161.001(b); In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re
J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence is clear and convincing if it “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.” Tex. Fam. Code § 101.007; E.N.C., 384 S.W.3d at 802.
“Because termination of parental rights ‘is complete, final, irrevocable and divests
for all time’ the natural and legal rights between parent and child,” a trial court “cannot
involuntarily sever that relationship absent evidence sufficient to ‘produce in the mind of the trier
6
of fact a firm belief or conviction as to the truth of the allegations sought to be established.’”
A.C., 560 S.W.3d at 630 (quoting Tex. Fam. Code § 101.007; Holick, 685 S.W.2d at 20). “This
heightened proof standard carries the weight and gravity due process requires to protect the
fundamental rights at stake.” Id.
“A correspondingly searching standard of appellate review is an essential
procedural adjunct.” Id. “The distinction between legal and factual sufficiency lies in the extent
to which disputed evidence contrary to a finding may be considered.” Id. “Evidence is legally
sufficient if, viewing all the evidence in the light most favorable to the fact-finding and
considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or
conviction that the finding was true.” Id. at 631. “Factual sufficiency, in comparison, requires
weighing disputed evidence contrary to the finding against all the evidence favoring the finding.”
Id. “In a factual-sufficiency review, the appellate court must consider whether disputed evidence
is such that a reasonable factfinder could not have resolved it in favor of the finding.” Id.
“Evidence is factually insufficient if, in light of the entire record, the disputed evidence a
reasonable factfinder could not have credited in favor of a finding is so significant that the
factfinder could not have formed a firm belief or conviction that the finding was true.” Id. We
are also mindful that we must “provide due deference to the decisions of the factfinder, who,
having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing
the credibility and demeanor of the witnesses.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
DISCUSSION
Because it is dispositive, we begin by addressing Mother’s third issue, in which
she challenges the legal and factual sufficiency of the evidence to support the trial court’s finding
that termination of her parental rights is in Child’s best interest. See Tex. Fam. Code
7
§ 161.001(b)(2). We review a factfinder’s best-interest finding in light of the non-exhaustive list
of considerations set out in Holley v. Adams, which include the child’s wishes, the child’s
emotional and physical needs now and in the future, emotional or physical danger to the child
now and in the future, the parenting abilities of the parties seeking custody, programs available
to help those parties, plans for the child by the parties seeking custody, the stability of the
proposed placement, the parent’s acts or omissions indicating that the parent–child relationship is
improper, and any excuses for the parent’s conduct. 544 S.W.2d 367, 371–72 (Tex. 1976); see
A.C., 560 S.W.3d at 631; E.N.C., 384 S.W.3d at 807; In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
The Holley factors are not exhaustive, not all factors must be proved, and a lack of evidence
about some of the factors does not “preclude a factfinder from reasonably forming a strong
conviction or belief that termination is in the child’s best interest, particularly if the evidence
were undisputed that the parental relationship endangered the safety of the child.” C.H.,
89 S.W.3d at 27. “We must consider ‘the totality of the circumstances in light of the Holley
factors’ to determine whether sufficient evidence supports” the best-interest finding. In re
J.M.G., 608 S.W.3d 51, 54 (Tex. App.—San Antonio 2020, pet. denied) (quoting In re B.F.,
No. 02-07-00334-CV, 2008 WL 902790, at *11 (Tex. App.—Fort Worth Apr. 3, 2008, no pet.)
(mem. op.)).
The “best interest” parental termination factor is “child-centered and focuses on
the child’s well-being, safety, and development.” A.C., 560 S.W.3d at 631. It is strongly
presumed that the child’s best interest is served by maintaining the parent–child relationship.
In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Because of
this presumption in favor of maintaining the parent–child relationship and the due-process
implications of terminating a parent’s rights to her minor child without clear and convincing
8
evidence, “the best interest standard does not permit termination merely because . . . a child
might be better off living elsewhere.” In re J.G.S., 574 S.W.3d 101, 121–22 (Tex. App.—
Houston [1st Dist.] 2019, pet. denied) (internal citations omitted). In other words, termination
cannot be used merely to reallocate children to better and more prosperous parents. Id. In
addition, the Department’s burden is not simply to prove that a parent should not have custody of
her children; it must meet the heightened burden to prove, by clear and convincing evidence, that
the parent should no longer have any relationship with her child whatsoever. In re K.N.J.,
583 S.W.3d 813, 827 (Tex. App.—San Antonio 2019, no pet.); see also In re J.A.J., 243 S.W.3d
611, 616–17 (Tex. 2007) (distinguishing conservatorship from termination).
The record contains scant evidence of most of the Holley factors. While
undisputed evidence of just one factor may be sufficient in a particular case to support a finding
that termination is in a child’s best interest, in general the “presence of scant evidence relevant to
each factor will not support such a finding.” In re A.W., 444 S.W.3d 690, 693 (Tex. App.—
Dallas 2014, pet. denied). Further, “a lack of evidence does not constitute clear and convincing
evidence.” E.N.C., 384 S.W.3d at 808.
As for the first factor, Child was too young to express his desires. Although
conclusory testimony showed that he was doing “amazing” in the foster home, undisputed
testimony showed that Mother’s regular, weekly virtual visitations with Child had also been
“going well.” Child had spent minimal time with Mother due to the very young age at which he
was removed from her care, but no evidence was presented that his removal was due to any
shortcoming, action, or failure of Mother.4 The foster mother testified that she was monitoring
4
Although the trial court took judicial notice of the emergency-removal affidavit,
the court was not permitted thereby to take judicial notice of the truth of any of the affidavit’s
factual allegations. See C.S. v. Texas Dep’t of Fam. & Protective Servs., No. 03-17-00229-CV,
9
Child’s development and that he was interacting with the foster family. This scant evidence
pertaining to the first factor is neutral at best. As for the second factor, there was no evidence
that Child had any unusual or special emotional or physical needs or would require greater-than-
average future care. Although the foster mother thought that he might be experiencing some
developmental delays, the record did not indicate that such possible delays would require
caretaking beyond Mother’s abilities or would not resolve on their own. This scant evidence of
the second factor is also neutral at best.
The third factor considers whether the parent poses any present or future physical
or emotional danger to the child. While past endangering conduct often predicts future
endangerment, see Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past
is often prologue.”), there was no evidence that Mother had previously endangered Child.
Evidence was presented of Mother’s violent and reactive text and oral communications with the
caseworker and “outbursts” and “temper tantrums” at Department offices, one of which occurred
in Child’s presence and caused him to cry. This constitutes some evidence from which a
factfinder could infer possible future physical or emotional danger to Child should Mother feel
stressed or overburdened by caring for Child or herself, especially considering her physical and
(undefined) mental disabilities. This factor weighs slightly in favor of termination. As for the
fourth factor, Mother admitted that such “outburst” behaviors were inappropriate, and she
exhibited some positive parenting abilities by describing knowledge and skills she has since
acquired from taking parenting classes, explaining how she would appropriately discipline
2017 WL 3471072, at *3 (Tex. App.—Austin Aug. 9, 2017, no pet.) (mem. op.). Further,
although Carver conclusorily testified that, regarding Child’s removal from the home, “it was
neglectful supervision and physical neglect that we were dealing with,” she does not identify a
subject for the statement (i.e., Was it Father’s, Mother’s, or both parents’ neglect?) or support the
conclusion with any facts.
10
Child should she become frustrated with him in the future. As for the parental abilities of Mrs.
Williams, the child was “doing amazing” in her home, eating well, and interacting with the foster
family, and Mrs. Williams was monitoring his development. This factor is neutral or weighs
slightly in favor of termination.
Regarding the fifth, sixth, and seventh factors, Mother identified neighbors and
family members who could assist her with her self-care and with transportation and explained
that she is able to meet her financial needs, including paying her rent, through the disability
payments and food stamps she receives. No evidence showed that Mother’s housing or finances
were unstable, and she testified that she takes her medications as prescribed. The evidence
was undisputed that Mother availed herself of the Department’s services and completed all her
court-ordered requirements except for individual therapy. Mother testified that she “gave up”
individual therapy after she believed the Department had “made a decision” to put Child up for
adoption because she felt hopeless about obtaining his return. Although Child was “doing
amazing” in the foster home, and the foster mother was monitoring his developmental progress,
the foster mother also had no experience raising a baby. Mother testified that she believed the
emotional and mental bond between a biological mother and her child is very important, and she
was concerned about how Child might be harmed if that bond were severed. These three factors
are neutral at best or weigh slightly against termination. Apart from what was already discussed
about Mother’s “tantrums” and “outbursts,” no evidence showed any acts or omissions indicating
that the parent–child relationship is improper (the eighth factor) and the related last factor
regarding excuses for any improper parental conduct.
Bearing in mind the presumption in favor of maintaining the parent–child
relationship, and that the best-interest standard does not permit termination merely because a
11
child might be better off living elsewhere, see J.G.S., 574 S.W.3d at 121–22, we conclude that
the evidence pertaining to most of the Holley factors does not rise to legally sufficient evidence
to support the trial court’s finding that termination of Mother’s parental rights is in Child’s best
interest. The only evidence weighing in favor of termination was Child’s “doing amazing” in
the foster home and Mother’s inappropriate text communications with the caseworker and few
“outbursts” at Department offices, which on one instance caused Child to cry. Even viewing
such evidence in the light most favorable to the trial court’s finding, and disregarding the
evidence that a factfinder could reasonably have found to be not credible—such as Mother’s
representation that she would more appropriately handle stressful situations and parenting
challenges in the future—we nonetheless cannot conclude that the evidence is such as to permit a
reasonable factfinder to form a firm belief or conviction that termination of Mother’s parental
rights is in Child’s best interest. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Because the
Department’s burden was not simply to prove that Mother should not have custody of Child
but that clear and convincing evidence proved that she should no longer have any relationship
with Child whatsoever, see K.N.J., 583 S.W.3d at 827, we sustain Mother’s third issue and hold
that the trial court erred in finding that termination of Mother’s parental rights was in Child’s
best interest.5
CONCLUSION
Having sustained Mother’s challenge to the legal sufficiency of the evidence to
support the trial court’s best-interest finding, we reverse the trial court’s decree terminating
5
Because the evidence was not legally sufficient to support the trial court’s best-interest
finding, we need not reach Mother’s remaining issues. See Tex. R. App. P. 47.1; Tex. Fam.
Code § 161.001(b) (prescribing that to terminate parental rights, trial court must find both that
termination is in child’s best interest and that parent’s actions satisfied a ground described in
Subsection (b)(1)).
12
Mother’s parental rights to Child. Ordinarily, when we hold that the evidence is legally
insufficient to support a finding on which a party bore the burden of proof, we render judgment
that the party take nothing on its claim that depended on securing that finding. See Tex. R. App.
P. 43.3. However, in cases involving involuntary termination of parental rights, if the trial court
does not order termination of the parent–child relationship, Section 161.205 of the Family Code
requires that the trial court either (1) deny the petition for termination or (2) render any order in
the best interest of the child. See Tex. Fam. Code § 161.205. Because appellate courts are “not
in a position to determine whether to simply deny the petition for termination or render some
other order in the best interest of the child,” Van Heerden v. Van Heerden, 321 S.W.3d 869,
874–75 (Tex. App.—Houston [14th Dist.] 2010, no pet.), we remand the case to the trial court
for the limited purpose of rendering an order consistent with Section 161.205. See In re
M.F.R.G., No. 13-21-00023-CV, 2021 WL 2149827, at *8 (Tex. App.—Corpus Christi–
Edinburg May 27, 2021, no pet.) (mem. op.).
__________________________________________
Thomas J. Baker, Justice
Before Justices Baker, Smith, and Jones*
Reversed and Remanded
Filed: August 24, 2023
*
Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
13