C. C. v. Texas Department of Family and Protective Services

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00164-CV

C. C., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 315,071-B, THE HONORABLE CHRISTOPHER L. CORNISH, JUDGE PRESIDING

MEMORANDUM OPINION

C.C. (Mother) appeals from the trial court’s decree terminating her parental rights

to her six children: Margaret, Sam, Nancy, David, Madison, and Ryan.1 Mother complains about

the legal and factual sufficiency of the evidence supporting the trial court’s findings about

statutory-predicate grounds for termination and the children’s best interests. See Tex. Fam. Code

§ 161.001(b)(1)(D), (E), (O), (2). For the following reasons, we affirm the termination decree.

PROCEDURAL BACKGROUND

In January 2020, the Texas Department of Family and Protective Services removed

all six children from Mother and Father M.’s home and filed an “Original Petition in Suit Affecting

the Parent-Child Relationship—Termination Petition and/or Managing Conservatorship.” The 1 For the children’s privacy, we refer to them by pseudonyms and to their family members by their relationships to them. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. The trial court’s decree also terminated the parental rights of the children’s respective fathers (Father L.—father of Margaret, Sam, Nancy, and David—and Father M.—father of Madison and Ryan and husband of Mother), but neither father has appealed. children were then twelve (Margaret), eleven (Sam), nine (Nancy), eight (David), four

(Madison), and three (Ryan). In the removal affidavit accompanying the Department’s petition,

the Department investigator averred that in December 2019 the Department was investigating

reports of physical abuse of Sam by Mother, the children’s primary caregiver.

According to the affidavit, law enforcement was called to the family’s home after

Margaret ran to a neighbor’s house stating that Mother was “trying to smash her brother’s face

into the wall.” Father M. was not home but Mother and the children were. Sam “was observed

by Law Enforcement to have several marks and injuries on his face” that “were fresh” and had

“dried blood on the side of his face by his ear.” The home appeared “disgusting,” “filthy,” and

“dirty,” and it “smelled like [f]eces.” Sam told the investigator that Mother caused his injuries

by “pushing him down into a corner because he would not stay still” and “slammed him down

to the ground and put her knee on his back to attempt to hold him down.” Margaret told the

investigator that Mother “does this all the time to [Sam],” “does drugs in front of them,” and

“uses methamphetamines.” Mother was arrested for child endangerment and incarcerated in Bell

County Jail. In an interview with the Killeen Police Department, Mother admitted to “physically

disciplining [Sam]” and that “all her children have mental health conditions and [physical

discipline] is the only way that she knows how to control them.” She also admitted to using

methamphetamine but denied using in front of the children.

The Department investigator averred about the family’s lengthy CPS history. In

2013, Mother received five years’ probation for a felony child-endangerment conviction after the

Department became involved with the family while investigating a report that Mother had bitten

Sam on a “lower extremity” because the child “was hungry.” In 2015, the Department received a

report that Mother was neglectfully supervising then-newborn Madison and “exhibiting erratic

2 and bizarre paranoid behavior that is believed to be indicative of mental illness.” At that time,

the Department had “concerns” that Mother was “unable to care for children” in part because she

had “sent four children to live with the maternal grandmother in Maine.” Mother had been

incarcerated until “shortly before newborn [Madison]’s birth,” and the Department removed

Madison from the home but later returned her to Mother and Father M. after they completed

required family services. In 2016, the Department received an allegation that Mother was

“mentally unstable” because she had reported that her hospital room was haunted and that she

“heard voices.” After Mother explained to the Department that she had been “joking” and recanted

her statement about hearing voices, the “allegations were ruled out and the case was closed.”

In 2018, the Department investigated the family again, citing allegations of the

children’s prior “sexual acting out behaviors,” Mother’s mental-health diagnoses (including

bipolar disorder), the children’s diagnoses and special needs (including ADHD, bipolar disorder,

and autism), Mother’s illegal drug use and prior noncooperation with Maine CPS, and Mother’s

“absconding from Maine with the children” without informing Maine CPS of her whereabouts.

Despite these concerns, the case was “ruled out” because the “[a]buse and [n]eglect did not occur

in Texas.” Nonetheless, there was “considerable concern that lead [sic] the case to be transferred

to Family Based [Safety] Services [(FBSS)] in October 2018.” Mother “reluctantly participated”

in FBSS, and neither she nor Father M. “consistently took advantage of any of the offered

services” such as counseling, daycare, and substance-abuse assistance. Further, Mother “did not

allow the children to receive counseling” and was “combative” during the FBSS period. When

the Department investigated the December 2019 allegation of Mother’s abuse of Sam, it received

reports of Sam riding a bicycle in cold weather wearing only a t-shirt and underwear and David

3 being sent to school in a sweater that “smelled of urine.” The investigator’s affidavit also

summarized detailed family CPS history from Maine and Vermont spanning 2008 to 2012.

After Mother was arrested in December 2019, the Department implemented a

safety plan with Father M. but shortly thereafter received reports that the children were

physically fighting and harming each other and that Father M. was improperly supervising them,

leaving them alone for over an hour on at least one occasion during which the children physically

injured one another. The investigator’s affidavit noted that the children were “not taking

prescribed medication” or receiving “any mental treatment” despite each having ongoing mental-

health and behavioral problems. After investigating the reports of Father M.’s inadequate

supervision, the Department removed the children from the home and filed its petition.

A final hearing before an associate judge occurred in January 2021, after which

the associate judge determined that all three parents’ rights to the children should be terminated.

Father M. requested a de novo hearing, and the district court conducted the de novo hearing in

February 2021.2 See Tex. Fam. Code § 201.015 (addressing de novo hearing before referring

court); see also In re A.L.M.-F., 593 S.W.3d 271, 280 (Tex. 2019) (noting that de novo hearing is

“an extension of the original trial on the merits” and “[i]ssues not specified [by party requesting

hearing] need not be reviewed”). After the de novo hearing, the district court adopted all of the

associate judge’s rulings and rendered a “De Novo Decree of Termination” on April 14, 2021.

Mother timely filed a notice of appeal.

2 Mother did not request a de novo hearing. Father L., although served and duly and properly notified, never appeared in the case and defaulted. 4 SUMMARY OF EVIDENCE

Final hearing

At the final hearing, Department conservatorship worker Courtney Robinson and

Father M. testified, and the trial court admitted into evidence the removal affidavit, Mother’s

and Father M.’s family service plans, the results of a drug-test performed on a urine specimen

taken from Mother in April 2020, an affidavit supporting the Department’s 2015 removal of the

children,3 the Department’s January 2021 final report to the court, Mother’s 2015 psychiatric

evaluation performed by Dr. Samuel Shapiro, and reports summarizing psychological

evaluations of Mother and Father M. performed in April 2020 by Dr. James N. Shinder. Court-

appointed counsel represented Mother at the final hearing, but Mother was incarcerated and

did not appear.

Robinson testified about the children’s current placements and any special needs

they had: Margaret was in a foster home and had no specialized needs; Sam was in a residential

treatment center working to address his difficulty with focusing, aggression, and reluctance

to communicate; Nancy was in a therapeutic family foster home working to decrease the

amount and intensity of her “outbursts”; David was in a foster home working on decreasing his

“outbursts” through therapy; and Madison and Ryan were in a foster home together where they

were both doing well and had no special needs.

3 In this earlier removal affidavit, the Department investigator averred that Mother had “admitted to smoking marijuana while pregnant with [Madison]” and that Mother’s probation “was revoked because of her admitted marijuana use.” Also, Mother by her “own admission” had “diagnosed mental health problems that she is currently not being treated for” and had “caused physical injury to one of her children at a young and vulnerable age” for which injury Mother did not seek treatment. Also, Margaret and Sam had “severe case[s] of lice that had been untreated for months despite [Mother] being provided with lice treatment.” 5 Robinson testified that Mother was presently incarcerated with a pending felony

charge for injury to a child and had a prior conviction for injury to a child. Mother had been

released on bond for the current charge and had lived with Father M. during that time but in

April 2020 tested positive for methamphetamine on a Department-ordered drug test and was

returned to jail for violating her bond. Robinson testified that there were “significant portions”

of this case during which Mother was not incarcerated and could have completed the

requirements in her court-ordered family service plan. However, Mother completed only a

psychological evaluation and an OSAR (outreach, screening, assessment, and referral for issues

related to substance abuse). Among requirements Mother did not complete were the following:

successful discharge from individual counseling, supervised visitation with the children,

abstaining from use of illegal drugs, submitting to weekly drug tests, and following the

recommendations outlined in her psychological evaluation.

Robinson explained that the Department’s permanency plan for all six children

was non-relative adoption. Although it was unlikely that they would all be adopted by one

family, and none of the children were yet in a foster home that was available to adopt them, the

Department was hopeful that at least some of the children might be adopted together, especially

the youngest two. Robinson testified that although the children had “severe” aggression and

discipline issues when they came into the Department’s care, each of them had been able to

“decrease their behaviors” in the time they had been in foster homes and therapeutic settings,

which are “healthy environments.” She believed that the children would have a “strong

possibility of being adopted” as their issues continued to be addressed in their placements. She

explained that although the two youngest were in therapy, they did not have any “behavior

issues” that might prevent them from being adopted.

6 The guardian ad litem opined that termination of the parents’ rights would be in

the children’s best interests and would prevent the children from “languishing in the system

until they turn 18.” She explained that the children had made “amazing progress” while in the

Department’s care.

De novo hearing

At the de novo hearing, Robinson testified similarly as to how she did at the

final hearing and additionally that the children “need protection from their mother.” Father M.

testified that he had been present when Mother “disciplined” two of the children by spanking them

on two occasions and that Mother had done “good things” with the children in his presence but

that he did not know what she had done when he was not present. The children’s guardian ad litem

testified that she believed the court should terminate the rights of all three parents. She also

testified that the youngest two children had no physical or mental conditions that would “hinder

them from being adopted” and that she did not see “any problem” with finding permanent

placements for all the children even though none of them were yet in their “forever home.”

DISCUSSION

To terminate a parent’s rights to her child, the Department must prove by clear

and convincing evidence that she engaged in conduct that amounts to at least one statutory

ground for termination pursuant to section 161.001 and that termination is in the child’s best

interest. Tex. Fam. Code § 161.001(b); In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Clear

and convincing evidence is 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.” Tex. Fam.

Code § 101.007; In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). The factfinder, “having full

7 opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the

credibility and demeanor of witnesses,” and we therefore defer to the factfinder’s decisions.

In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). “The distinction between legal and factual

sufficiency lies in the extent to which disputed evidence contrary to a finding may be

considered.” A.C., 560 S.W.3d at 630. In reviewing legal sufficiency, we do not ignore

undisputed evidence contrary to the finding but otherwise assume the factfinder resolved

disputed facts in favor of its finding. Id. at 630-31. In reviewing factual sufficiency, we weigh

the disputed evidence contrary to the finding against all the evidence favoring the finding and

ask whether the disputed evidence is such that a reasonable factfinder could not have resolved it

in favor of the finding. Id.

Termination of the parent-child relationship may be ordered under subsection (D)

if clear and convincing evidence establishes that the parent has “knowingly placed or knowingly

allowed the child to remain in conditions or surroundings which endanger the physical or

emotional well-being of the child,” Tex. Fam. Code § 161.001(b)(1)(D), and under subsection

(E) if the evidence establishes that the parent “engaged in conduct or knowingly placed the child

with persons who engaged in conduct which endangers the physical or emotional well-being of

the child,” id. § 161.001(b)(1)(E). The Department does not have to prove that the conduct was

directed at the child or that the child suffered an actual injury. In re E.N.C., 384 S.W.3d 796,

803 (Tex. 2012). Subsection (D) focuses on the child’s environment, while subsection (E)

focuses on the parent’s conduct and asks whether the parent engaged in a voluntary, deliberate,

and conscious course of conduct that endangered the child. V.P. v. Texas Dep’t of Fam. &

Protective Servs., No. 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4,

2020, no pet.) (mem. op.).

8 We consider a trial court’s finding on best interest in light of the factors set out in

Holley v. Adams: the child’s wishes, if appropriate given the child’s age; her emotional and

physical needs now and in the future; present and future emotional or physical danger posed to

the child; the parenting skills of those seeking custody; any programs available to assist those

seeking custody to promote the child’s best interest; plans for the child’s future; the stability of

the home or proposed placement; conduct by the parent that might show that the parent-child

relationship is inappropriate; and any excuses for the parent’s conduct. 544 S.W.2d 367, 371-72

(Tex. 1976). 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 [was] undisputed that the parental relationship endangered the safety of the child.”

In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

Statutory-predicate grounds

As for statutory-predicate grounds supporting termination of parental rights, our

review of the record leads us to conclude that the evidence was legally and factually sufficient to

support the trial court’s finding that Mother engaged in conduct or knowingly placed the children

with persons who engaged in conduct that endangered the physical or emotional well-being of

the children. See Tex. Fam. Code § 161.001(b)(1)(E). Evidence showed that Mother had used

marijuana while pregnant, physically assaulted and injured some of the children, used excessive

physical discipline with the children, left illegal drugs in the children’s reach and used drugs in

their presence, been previously convicted for causing injury to one of her children, absconded

from another state with the children without notifying the state’s child-welfare agency as she was

9 required to do, exhibited symptoms of mental illness, admitted she had mental-health needs but

was not taking medications for them, tested positive for methamphetamine during the case

and repeatedly refused to test during the case, failed to complete most of her court-ordered

services, been only minimally cooperative during the FBSS period, refused to allow the children

to attend therapy, failed to address the children’s extensive special needs, and been incarcerated

in the past and was currently incarcerated. Because the evidence is sufficient to support the

court’s finding under subsection (E), we need not consider whether the evidence also supports

the findings under subsections (D) or (O). See Spurck v. Texas Dep’t of Fam. & Protective

Servs., 396 S.W.3d 205, 222 (Tex. App.—Austin 2013, no pet.).

Best interests

As for the best interests of the children, the trial court considered the above-cited

evidence demonstrating that Mother had: physically abused one or more of the children on more

than one occasion and in front of the other children, used illegal drugs in front of the children

and while caring for them, failed to address her own mental-health issues or the significant

special needs and behavioral issues of her children, and not demonstrated any significant

progress on addressing the Department’s serious concerns about her ability to safely care for her

children and tend to their well-being for many years. The children had been improving with

respect to their behavioral and special needs while in the Department’s care, and the Department

planned to find “forever homes” for the children via adoption. Weighing the evidence presented

under the Holley factors and bearing in mind the trial court’s role as factfinder, we conclude that

10 sufficient evidence supports the court’s finding that termination of Mother’s parental rights is in

the children’s best interest.4 See C.H., 89 S.W.3d at 27; Holley, 544 S.W.2d at 371-72.

CONCLUSION

Having overruled Mother’s issues, we affirm the trial court’s decree of termination.

__________________________________________ Thomas J. Baker, Justice

Before Chief Justice Byrne, Justices Baker and Smith

Affirmed

Filed: July 21, 2021

4 We conclude so despite Mother’s three arguments about “other relevant factors” beyond those expressly listed in Holley that purportedly weigh against termination: (1) potential placement of the children with a maternal aunt in Hawaii required the court to sua sponte order a home study on the aunt (however, Mother never suggested her sister as a placement option, and Father M. only did so about a month before trial; Mother cites no authority requiring or permitting the trial court to order such a study; and Mother did not complain about this issue to the trial court); (2) there had been no recommendations from the children’s therapists since July 2020 about what would be in their best interest (however, the Department need not present evidence of all potential best-interest factors); and (3) the court interpreter, through whom Father M. testified, was not “certified” (however, neither Mother nor any other party objected to the lack of certification and instead affirmatively waived any such complaint). 11