In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00154-CV ___________________________
IN THE INTEREST OF A.K. AND J.K., CHILDREN
On Appeal from the 78th District Court Wichita County, Texas Trial Court No. DC78-CP2020-2337
Before Bassel, Womack, and Wallach, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
After a jury trial, the trial court signed a judgment terminating the parental
rights of appellant E.C. (Father) and appellant K.C. (Mother) to their two children,
Ann and Bruce.1 In separate briefs, both parents contend that the evidence was
legally and factually insufficient to establish by clear and convincing evidence that
terminating their respective parental rights was in their children’s best interest. We
affirm the trial court’s judgment.
I. Background
According to the affidavit supporting the Department of Family and Protective
Services’ original petition, shortly after midnight on Saturday, November 7, 2020, the
police responded to a verbal disturbance between Father and Mother while Ann and
Bruce were present. In November 2020, Ann was three years old, and Bruce was two
years old. According to the police, Father and Mother each accused the other of
being under the influence of narcotics. After obtaining consent to search the home,
the police found a pipe used to smoke marijuana and a clear plastic baggie that they
suspected was used to package narcotics. Mother had an outstanding warrant for
family-violence assault, so the police arrested her. As for the children, the police
released them into the care of Paternal Grandmother.
1 We use aliases to identify the children, and we identify family members by their relationship to the children. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
2 That same day, the Department investigator went to the county jail where she
met with Mother, who asserted that Father had a methamphetamine problem and that
she and Father would fight anytime she found methamphetamine in their home.
Mother denied currently using methamphetamine herself but admitted having
previously abused methamphetamine, heroin, and prescription pills. Mother stated
that the children would be safe with Paternal Grandmother but expressed concerns if
they were returned to Father.
From the jail, the investigator went to the family’s residence where she spoke
with Father. He maintained that the verbal dispute was over allegations that he had
cheated on Mother. According to Father, during the altercation Mother was either
under the influence of methamphetamine or experiencing a postpartum depression
crisis. Despite the argument, Father informed the investigator that he intended to
bond Mother out of jail the next day. He did not know of anyone with whom the
Department could place the children.
That evening, Paternal Grandmother contacted the investigator to explain that
she would not be able to care for Ann and Bruce. Paternal Grandmother related to
the investigator that neither Father nor Mother could get off drugs. She thought that
Father had perhaps been sober a week but that Mother was actively abusing
methamphetamine.
3 The Department thus removed Ann and Bruce,2 and on the following Monday,
November 9, 2020, it filed an “Original Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the Parent–Child
Relationship.” On the same date, the trial court signed an “Order for Protection of a
Child in an Emergency and Notice of Hearing” in which it appointed the Department
as the children’s temporary managing conservator.
After three days of evidence, the jury deliberated an hour and twenty minutes
and returned its verdict terminating both Father’s and Mother’s parental rights.
Within the verdict, the jury found grounds for terminating Mother’s parental rights
under Subsections (D), (E), (O), and (P) of Section 161.001(b)(1) of the Texas Family
Code.3 For Father, the jury found those four grounds plus one more—Subsection (L)
2 Father maintained that the Department removed the children from him while Mother was in jail and that the reason for the removal was Father’s intent to bond Mother out of jail. If true, then Paternal Grandmother returned the children to Father later that same day. The Department’s petition asserts that it removed the children on November 7, 2020, but the supporting affidavit does not specify from whom the Department removed them. 3 Subsection (D) involves an endangering environment. Tex. Fam. Code Ann. § 161.001(b)(1)(D). Subsection (E) entails endangering conduct. Id. § 161.001(b)(1)(E). Subsection (O) deals with failure to comply with a court order setting out the actions necessary to obtain a child’s return. Id. § 161.001(b)(1)(O). And Subsection (P) addresses the use of a controlled substance in a manner that endangers a child and the failure to complete a substance-abuse program or, having completed a substance-abuse program, the continued use of a controlled substance. Id. § 161.001(b)(1)(P).
4 of Section 161.001(b)(1) of the Texas Family Code. 4 For both parents, the jury found
that termination was in their children’s best interest. See Tex. Fam. Code Ann.
§ 161.001(b)(2).
II. Legal Principles
A. Generally
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except the child’s right to inherit.
Id. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently,
“[w]hen the State seeks to sever permanently the relationship between a parent and a
child, it must first observe fundamentally fair procedures.” In re E.R., 385 S.W.3d
552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388,
1391–92 (1982)).
Termination decisions must be supported by clear and convincing evidence.
See Tex. Fam. Code Ann. §§ 161.001(b), .206(a); In re E.N.C., 384 S.W.3d 796, 802
(Tex. 2012). Due process demands this heightened standard because “[a] parental
rights termination proceeding encumbers a value ‘far more precious than any property
right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at
1397). Evidence is clear and convincing if it “will produce in the mind of the trier of
4 Subsection (L) requires a conviction or community supervision for specified offenses involving harm to a child. Id. § 161.001(b)(1)(L). In Father’s case, it was for sexual assault of a child. Id. § 161.001(b)(1)(L)(vi).
5 fact a firm belief or conviction as to the truth of the allegations sought to be
established.” Tex. Fam. Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.
For a trial court to terminate a parent–child relationship, the party seeking
termination must establish, by clear and convincing evidence, that (1) the parent’s
actions satisfy just one of the many predicate grounds that are listed in Subsection
161.001(b)(1) of the Texas Family Code and (2) termination is in the child’s best
interest. Tex. Fam. Code Ann. § 161.001(b)(1), (2); E.N.C., 384 S.W.3d at 803; In re
J.L., 163 S.W.3d 79, 84 (Tex. 2005).
B. Legal Sufficiency
In evaluating the evidence for legal sufficiency in parental-rights-termination
cases, we determine whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction that the Department proved both the particular
ground for termination and that termination was in the child’s best interest. In re
J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); see In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005). We review all the evidence in the light most favorable to the finding and
judgment, and we resolve any disputed facts in favor of the finding if a reasonable
factfinder could have done so. J.F.C., 96 S.W.3d at 266. We also must disregard all
evidence contrary to the finding that a reasonable factfinder could have disbelieved, in
addition to considering undisputed evidence even if it is contrary to the finding. Id.
That is, we consider evidence favorable to termination if a reasonable factfinder
could, and we disregard contrary evidence unless a reasonable factfinder could not.
6 See id. In doing our job, we cannot weigh witness-credibility issues that depend on the
witness’s appearance and demeanor; that is the factfinder’s province. J.P.B., 180
S.W.3d at 573. And even when credibility issues appear in the appellate record, we
defer to the factfinder’s determinations as long as they are not unreasonable. Id.
C. Factual Sufficiency
We must perform “an exacting review of the entire record” in determining
whether the evidence is factually sufficient to support terminating a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In a factual-sufficiency
review, we give due deference to the factfinder’s findings and do not supplant the
judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We
determine whether, on the entire record, a factfinder could reasonably form a firm
belief or conviction that the parent violated an alleged ground and that termination
was in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); see In re C.H., 89
S.W.3d 17, 25 (Tex. 2002). If, in light of the entire record, the disputed evidence that
a reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction in the
truth of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at
108.
D. Best Interest
There is a strong presumption that keeping a child with a parent is in the child’s
best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We review the entire
7 record to determine the child’s best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex.
2013). Evidence that is probative of grounds under Section 161.001(b)(1) may also be
probative of best interest under Section 161.001(b)(2). Id. at 249; C.H., 89 S.W.3d at
28. Nonexclusive factors that the factfinder in a termination case may also use in
determining the child’s best interest include:
• the child’s desires;
• the child’s emotional and physical needs now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the child’s best interest;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the parent’s acts or omissions that may indicate that the existing parent-child relationship is not a proper one; and
• the parent’s excuse, if any, for the acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249;
E.N.C., 384 S.W.3d at 807. These factors do not form an exhaustive list, and some
factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore,
undisputed evidence of just one factor may suffice in a particular case to support a
finding that termination is in the child’s best interest. Id. On the other hand, the
presence of paltry evidence relevant to each factor will not support such a finding.
8 Id.; In re C.G., No. 02-20-00087-CV, 2020 WL 4518590, at *7 (Tex. App.—Fort
Worth Aug. 6, 2020, pet. denied) (mem. op.); In re J.B., No. 02-18-00034-CV, 2018
WL 3289612, at *4 (Tex. App.—Fort Worth July 5, 2018, no pet.) (mem. op.).
III. Discussion
Neither parent contests the jury findings on the grounds of termination. See
Tex. Fam. Code Ann. § 161.001(b)(1). Rather, each contests the jury findings that
termination was in their children’s best interest. See id. § 161.001(b)(2).
A. Children’s desires
At the time of the 2022 trial, Ann was almost five years old, and Bruce was still
several months away from his fourth birthday. Both lacked sufficient maturity to
express an opinion regarding a parental preference, and neither testified at trial. See
In re M.S., No. 02-21-00007-CV, 2021 WL 2654143, at *18 (Tex. App.—Fort Worth
June 28, 2021, pet. denied) (mem. op. on reh’g); In re M.H., 319 S.W.3d 137, 150 (Tex.
App.—Waco 2010, no pet.); see also Tex. Fam. Code. Ann. § 153.134(a)(6) (providing
that a child must be at least twelve years old before the child’s preference, if any,
regarding the person to have the exclusive right to designate the child’s primary
residence becomes a factor), § 156.101(a)(2) (same). This factor is neutral.
B. Children’s emotional and physical needs now and in the future
Both Ann and Bruce were autistic special-needs children. Both were delayed in
their speech and were receiving speech therapy. Bruce had a genetic disorder,
medium-chain acyl-CoA dehydrogenase (MCAD) deficiency, that prevented his body
9 from breaking down certain fats and that thus required a special diet. Both were
receiving occupational therapy, which the children’s caseworker described as therapy
designed to help them developmentally.
This factor, by itself, is neutral. However, the children’s extreme youth and
special needs place a premium on parental abilities and the stability of their home.
C. Emotional and physical danger to the children now and in the future
1. The present investigation was the Department’s third for Father and Mother
Father and Mother had a history of endangering first Ann and later, after
Bruce’s birth, both Ann and Bruce. The Department investigator testified that the
Department had investigated Father and Mother on three occasions.
a. Ann’s birth in 2017
The first occasion was when Ann was born in 2017; both Mother and Ann
tested positive for methamphetamine. Father and Mother agreed to place Ann with
Paternal Grandmother and, further, to voluntarily work services with the
Department’s Family Based Services. Mother completed her services and obtained
sobriety; in contrast, Father continued to test positive for methamphetamine. The
Department returned Ann to Mother, and with the Department’s approval, both
Mother and Ann moved to Washington, where Mother had family. Father remained
in Texas. As Mother explained to the jury, “They told me as long as I left him, I
10 didn’t go back to him, that there was no danger, there was no reason for [the
Department] to be involved.” The Department then closed the case.
b. The eye-socket incident—August 2020
The second occasion was in August 2020. By this time, Ann was three years
old, and Bruce was two years old. Both children were in the home when Mother’s eye
socket was broken, and Bruce had either been in the room when the incident
happened or had entered the room shortly thereafter.
The investigator asserted that Father had assaulted Mother and that Mother
had said that Father had been using methamphetamine and had been diagnosed with
bipolar disorder and post-traumatic stress disorder (PTSD). 5 Father, for his part,
asserted that Mother had assaulted him and that when he grabbed her, they both fell,
and Mother injured herself in the fall. Father commented, “I don’t see how in the hell
that could have happened.” Father maintained that Mother had injured her eye
socket when her head hit his in the fall. He maintained his back was hurt in the same
incident.
5 Father was prescribed Depakote, a mood stabilizer, see In re G.F., No. 02-21- 00267-CV, 2022 WL 524138, at *4 n.8 (Tex. App.—Fort Worth Feb. 22, 2022, pet. denied) (mem. op.), and Trazadone, a psychotropic medication used to treat depression, see J.B. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-21-00325-CV, 2021 WL 5456653, at *1 (Tex. App.—Austin Nov. 17, 2021, pet. denied) (mem. op.). He was not taking his medications at the time of trial.
11 Father said that both he and Mother were arrested for assault, but he filed an
affidavit of nonprosecution, so the charge against Mother was dismissed. Father’s
situation was otherwise; the assault charge against him remained pending.
c. The November 7, 2020 incident
After the eye-socket incident, Mother and the children left Texas for
Washington. Their stay in Washington was, however, temporary. The caseworker
thought that Mother and the children had returned on October 24, 2020. Father
testified that Mother and the children had returned to Texas and him in November
2020. In any event, a short time thereafter, the Department launched its third
investigation, the current one based on the events that occurred on November 7,
2020—the verbal altercation, the drug pipe, and Mother’s arrest on a warrant.
2. Methamphetamine use
Methamphetamine use, by both Father and Mother, posed a danger to the
children. Father admitted being a methamphetamine addict. Mother bonded Father
out of jail on January 14, 2022. Father admitted using methamphetamine the very
first day that he was out.
Mother initially maintained that she did not know if she had a drug problem.
When pressed, however, she denied having one.
On the other hand, she admitted using methamphetamine a month or two
before trial. Regarding Mother’s drug use, the caseworker said that Mother had
multiple positive drug screens for methamphetamine throughout the case and that
12 Mother’s use had worsened as the case progressed. The record shows that Mother
tested positive for methamphetamine based on urine samples taken on January 26,
2021; March 10, 2021; and September 17, 2021. The record also shows that Mother
tested positive for methamphetamine based on hair samples taken on April 8, 2021;
August 2, 2021; and March 3, 2022. Because Mother failed to submit to drug screens
on June 9, 2021; June 30, 2021; October 7, 2021; February 14, 2022; March 2, 2022;
and March 18, 2022, she was deemed to have tested positive on those dates as well.
Drugs and their effect on a person’s ability to parent may qualify as an
endangering course of conduct. In re M.M., No. 02-21-00185-CV, 2021 WL 5227177,
at *5 (Tex. App.—Fort Worth Nov. 10, 2021, no pet.) (mem. op.) Further, evidence
that a parent continued to use illegal drugs even though the parent knew that his or
her parental rights were in jeopardy is conduct showing a voluntary, deliberate, and
conscious course of conduct that endangers a child’s well-being. Id. Because using
drugs exposes children to the possibility that the parent may be impaired or
imprisoned, their use may support termination. Id. Grounds for termination under
Section 161.001(b)(1) may also be probative when determining best interest under
Section 161.001(b)(2). E.C.R., 402 S.W.3d at 250.
3. Violence
And then there is the issue of domestic violence. A factfinder could reasonably
conclude that the broken-eye-socket incident resulted from domestic violence. Father
did not dispute that there was a verbal argument. Father similarly did not dispute that
13 there was physical violence; indeed, he maintained that Mother had assaulted him.
Mother, however, was the person who ended up with a broken eye socket. Three
months later, the police responded to another domestic dispute. During both
incidents, the children were in the home.
Father also had a pending assault charge. He was accused of assaulting John
Doe,6 whom Father suspected was having relations with Mother. When the
Department asked Father about John Doe, Father pleaded his Fifth Amendment right
not to testify. In a civil case, such as this one, a factfinder may draw negative
inferences from a party’s assertion of the privilege against self-incrimination. In re
B.B., Nos. 02-19-00250-CV, 02-19-00251-CV, 2020 WL 1057308, at *2 (Tex. App.—
Fort Worth Mar. 5, 2020, no pet.) (mem. op.).
Domestic violence, lack of self-control, and a propensity for violence may be
considered as evidence of endangerment. In re B.K., No. 02-21-00175-CV, 2021 WL
5848769, at *5 (Tex. App.—Fort Worth Dec. 9, 2021, pet. denied) (mem. op.).
Abusive or violent conduct can produce a home environment that endangers a child’s
well-being. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003,
no pet.).
Out of an abundance of caution, we use an alias for this person. 6
14 4. Father’s failure to register as a sex offender
In December 2021, Father went to jail for failure to register as a sex offender. 7
Because that case was still pending, Father invoked his Fifth Amendment right against
self-incrimination. See In re A.B., 372 S.W.3d 273, 275 (Tex. App.—Fort Worth 2012,
no pet.). As with the assault involving John Doe, because this termination proceeding
was civil, the jury could draw adverse inferences from Father’s pleading the Fifth. See
B.B., 2020 WL 1057308, at *2.
A parent’s criminal history can support a finding of endangerment. In re
J.F.-G., 627 S.W.3d 304, 313 (Tex. 2021). As part of a parent’s criminal history,
factfinders can take into account the nature of the crimes, the duration of
incarceration, and whether a pattern of escalating, repeated convictions exists. Id.
5. Parental visits and their impact on Ann’s behavior
Evidence also suggested that Father’s and Mother’s visits with Ann impacted
her behavior negatively:
Q. [BY THE DEPARTMENT] Okay. Does [Ann] have a change of behavior after visitations?
A. [BY FOSTER MOTHER] Absolutely.
7 In October 1999, Father committed the offense of sexual assault of a child, and in January 2001, Father pleaded guilty and was placed on deferred adjudication community supervision for ten years. Father admitted pleading guilty to digitally penetrating the sexual organ of his four-year-old sister when he was seventeen years old, but he maintained that he pleaded guilty only so that he could get out of jail. Before the year was out, in November 2001, Father was adjudicated guilty and sentenced to six years’ confinement in the penitentiary. Father had violated his community supervision by committing a burglary.
15 Q. With one parent or both parents?
A. Um, both.
Q. Let’s start with [Father].
....
Q. . . . . What -- What are [Ann’s] behaviors after visits with [Father]?
A. When she’s seen just [Father] that day, alone, she is more defiant and more aggressive.
Q. Okay. When she’s seen [Mother]?
A. She reverts to baby-like behaviors and regresses.
The children’s attorney ad litem pursued this line of questioning, and Foster Mother
gave more details:
Q. [BY THE ATTORNEY AD LITEM] . . . . After visitations, do you see any change in [Ann’s] behavior?
A. [BY FOSTER MOTHER] Yes, sir.
Q. And can you explain to the jury what those changes are?
A. Typically, they are baby-like regressive stages. She will try to steal a bottle from the baby. She will even grab a pacifier, put it in her mouth. She will begin babbling again. She will want you to even hold her and rock her like a baby sometime[s]. There’[re] other times that she will get real[ly] aggressive and defiant. She will throw -- Just this past week, she threw a toy at my kid’s head, the nine-year-old.
Q. These -- Do these changes in behavior that you testified to occur frequently after visitations?
A. Yes, more so since . . . May or June . . . .
16 For Ann, the parental visits were destabilizing. See In re J.C.W., No. 09-21-00231-CV,
2022 WL 174541, at *10 (Tex. App.—Beaumont Jan. 20, 2022, pet. denied) (mem.
op.) (noting regressive behavior after visits); In re B.N., No. 10-09-00216-CV, 2010
WL 3434214, at *3 (Tex. App.—Waco Sept. 1, 2010, no pet.) (mem. op.) (noting
violent behavior after visits).
The evidence showed that Father and Mother posed an emotional and physical
danger to their children. This factor weighs in favor of termination.
D. Parental abilities of the individuals seeking custody
The Department had no concerns about Paternal Grandmother or Foster
Mother. In contrast, the Department had many concerns—primarily drug use and
domestic violence—about returning the children to Father and Mother.
This factor weighs in favor of termination.
E. Programs available to assist these individuals to promote the children’s best interest
The trial court issued an order setting out the actions necessary to obtain the
children’s return, and the jury found that both Father and Mother had failed to
comply with it. See Tex. Fam. Code Ann. § 161.001(b)(1)(O). Neither Father nor
Mother contests those findings. Consequently, both Father and Mother had already
been given opportunities to work services designed to teach them the skills needed to
parent their children safely, and both had failed to take advantage of them.
17 We acknowledge that Father and Mother worked some services. For example,
both completed parenting classes. Additionally, Father completed an anger
management program and participated in individual counseling for about six months,
although he was ultimately unsuccessfully discharged. Father remained employed for
the most part, attended the majority of his visitations, and was appropriate during
those visitations. As for Mother, she engaged in substance-abuse counseling and
individual counseling, but she was unsuccessfully discharged from the latter. Mother
also completed a domestic violence class and, to an extent, maintained legal
employment. Like Father, she attended the majority of her visitations and was
appropriate during them. But after nearly a year and a half, both parents had failed to
show that they had learned the skills necessary to provide a safe and appropriate
home for the children. Assuming services were available after the trial, the record
suggests that neither Father nor Mother would profit from them.
F. Plans for the children by these individuals or by the agency seeking custody
Ann had been placed with a foster family that wanted to adopt her. Bruce had
been placed with Paternal Grandmother; she wanted to adopt him. Because both
Ann and Bruce were special-needs children, the Department had not found a
placement that was willing to take both children. Nevertheless, the foster family and
Paternal Grandmother worked at ensuring that Ann and Bruce spent time together.
18 For example, Bruce had spent weekends with Ann and her foster family, and Ann had
spent weekends with Bruce and Paternal Grandmother’s family.
When Father was asked whether he had any plans for the children if they were
returned to him, he responded, “Right now? I kind of don’t . . . . I mean, I would
need help right now. No, right now, I am not good to take my kids. I’m not.”
Mother too acknowledged that she was not, at that time, able to offer Ann and Bruce
a safe and stable home. The Department had removed Ann and Bruce in early
November 2020, but in late March 2022, neither parent was in a position to provide
the children a safe and stable home.
G. Stability of the home or proposed placement
1. Father and Mother
At the time of trial, Father was homeless. To the caseworker’s knowledge,
Mother had lived in at least three different locations. Mother maintained that at one
time she had her own apartment, but she moved out because, as she explained, the
landlord was “nitpicking” and insisted that she pay her rent in full. Initially, Mother
moved in with a co-worker, but she later lived with a friend. The caseworker, after
asking Mother’s friend about her criminal history, had concerns and did not consider
Mother’s friend’s home a safe and appropriate environment for the children. At trial,
Mother maintained that she had leased a house and was planning on moving into it
once the trial was over.
19 Since the case began, Mother had four different jobs. She had worked at
Valero, Dollar Saver, Subway, and McDonald’s. At one time, Father had jobs at
Century Tent, A-1 Rentals, and a furniture store. Father maintained that he had lost
his employment when he was arrested for failure to register as a sex offender in late
December 2021 and, thereafter, remained jailed until the middle of January 2022
when Mother bonded him out. At trial, Father asserted that he was self-employed.
When asked what kind of work he did, he responded,
Woodworking. I tile floors. I can make your house. I can -- I mean, I’m very talented at a lot of different things. I have an[] NCCER certificate, National Center for Construction and Educational Research. I’m a trim and upholstery technician. I’m a collision finisher technician. I’m like -- I’ve been a plumber. I do a lot of handyman work.
Father nevertheless was homeless.
2. Adoptive placements
In contrast, the adoptions would provide both Ann and Bruce stability. Both
children were very bonded in their placements. Both placements could meet Ann’s
and Bruce’s special needs. And both placements could provide the children with
drug-free, safe, and stable homes.
20 H. (1) Parents’ acts or omissions that may indicate that the existing parent– child relationship is not a proper one and (2) parents’ excuses, if any, for their acts or omissions
1. Methamphetamine
Father admitted using methamphetamine throughout the case. He even
admitted using methamphetamine three days before trial. He also acknowledged that
he was an addict.
But according to Father, not everything about his drug use turned out poorly:
“Those kids were born because -- because we did drugs. We would have never met.
We would have never talked or -- the kids wouldn’t have been -- these kids wouldn’t
have been born if it weren’t for drugs.”
Father maintained that he and Mother were functional methamphetamine users
until the Department removed the children:
A. [BY FATHER] I’m trying -- [w]e did drugs the entire time. And if we never missed any appointments -- [t]hose kids never missed any appointments. They always had diapers, always had wipes, always had food and a shelter over their head.
Q. [BY DEPARTMENT] So you’re saying the entire time, the entire lifetime of the children, you guys were using drugs?
A. Since before they were born, but not like we are now.
Q. So --
A. It’s never been this bad.
Q. Are you saying you were functional methamphetamine users until the children were taken?
21 A. Yeah, and not on a daily basis; just occasionally.
Minimizing the danger that methamphetamine posed to Ann and Bruce, Father
denied that he or Mother ever used methamphetamine around the children and
explained that he and Mother would take turns, “We’d alternate. If she wanted to get
high, I’d take the children[,] and she’d get high.” Father insisted, “We didn’t do drugs
around the kids.” On the other hand, Father admitted that he was the person who
gave Mother the methamphetamine when she was pregnant with Ann. He
commented, “I regret that.”
Father had not gone to rehab. He had, however, by his count, gone to
Narcotics Anonymous at least five times.
Mother was receiving substance-abuse counseling at the time of trial. Her
counselor acknowledged, however, that not everyone who seeks drug treatment wants
genuinely to “kick their habit.” Her counselor also agreed that admitting a drug
problem might be the first step in treatment. Mother’s counselor stated that he
thought that Mother was serious about addressing her drug problem, but he qualified
his statement by saying that he was optimistic about all his clients “until they prove[d]
otherwise.” He added, “But, you know, [Mother and I] just -- we’ve just gotten
started, so I’ve got no reason to think otherwise.”
A factfinder could have reasonably questioned the sincerity of Mother’s
attempt to stop using methamphetamine. Mother had, after all, denied having a
problem with methamphetamine. Other evidence showed that Mother was capable of
22 deceit: she admitted using synthetic urine in an attempt to falsify the results of one of
her drug tests.
2. Methamphetamine and danger
Mother acknowledged that someone on drugs was dangerous, but she pointed
out that Father, when sober, posed no danger: “When [Father’s] sober, I don’t think
that he’s a danger to any kids. Um, anybody on drugs, I wouldn’t let -- you know,
they’re unpredictable, so you obviously wouldn’t want them around children by
themselves or whatever. But, no, I don’t think he’s a danger when he’s sober.” When
the children’s attorney pressed the matter, however, Mother admitted that Father was
a danger to the children when he was high:
Q. [BY ATTORNEY AD LITEM] So to flip that, when he’s not sober, when he’s high on methamphetamine, he’s a danger to these kids, isn’t he?
A. [BY MOTHER] When anybody is high on methamphetamines, they’re unpredictable; therefore, a danger to any child.
Q. So [Father], when he’s on methamphetamine, is a danger to the children? That’s a “yes” or “no” question.
A. Yeah.
Mother even conceded that when she was high, she was a danger to the
children, but she minimized the danger by saying that she was not high very often:
Q. [BY THE DEPARTMENT] Okay. So you said when anyone is on meth, they are a danger to children, didn’t you?
A. [BY MOTHER] Unpredictable, therefore --
23 Q. So when you’re on meth, you’re a danger to children?
A. Uh, anybody. I mean, I could agree with that.
Q. And you relapsed often?
A. No.
3. Domestic violence
Father denied that there was any domestic violence on his or Mother’s part.
He maintained that even the eye-socket incident was an accident. He agreed that a
home with domestic violence is not a safe one for children.
Like Father, Mother denied any domestic violence. And like Father, Mother
even disputed whether domestic violence was responsible for her broken eye
socket—but unlike Father, she hedged just a bit:
Q. [BY MOTHER’S ATTORNEY] When your orbital bone was fractured, do you know how that was done?
A. [MOTHER] Um, I don’t. I mean, I was -- I threw my arms up and I don’t know. Like, I blacked-out.
Q. [Father] said he hit you with his chin. Does that sound about right?
A. I don’t know for sure. I hope so. I don’t want to believe that he punched me in the eye, but, I mean -- [.]
4. Whether Father and Mother were still a couple
Father and Mother both maintained that they were no longer in a relationship.
Father testified on one occasion that they had stopped being in a relationship three or
24 four months before trial and, on another occasion, about a year before trial. Mother
denied that they were in a romantic relationship and maintained that their relationship
was limited to co-parenting. She asserted that their relationship had ended about a
year earlier. The caseworker, however, believed that Father and Mother’s relationship
was ongoing.
Mother admitted wanting Father to have another chance to get clean but
denied that—if the children were returned to her—she would let Father see the
children if he was not sober. Mother’s history, however, suggested the contrary.
In the earliest investigation—the one initiated in 2017 after Ann’s birth when
both Mother and Ann had tested positive for methamphetamine—Mother and Ann
went to Washington with the Department’s approval. Subsequently, Mother and
Father had another child—Bruce—in 2018, who was born in Washington. At some
point, Mother, Ann, and Bruce were all in Texas with Father. We know this because
there was a second investigation in Texas.
In the second investigation—the eye-socket incident in August 2020—after the
Department became involved, Mother again went to Washington; this time she took
both children. Unlike the previous time, however, Mother did so without the
Department’s approval. The caseworker commented, “It’s concerning when a family
leaves the state, yes, in the middle of an investigation.” Mother denied fleeing the
state. She maintained that she went to Washington to have surgery on her eye socket.
She explained, “I needed help with the children . . . . I needed support. . . . I was
25 gonna have surgery.” When asked why she did not leave Ann and Bruce with Father,
she responded that she took care of her kids and that she was being protective.
Regardless of the explanation, Mother and the children were back in Texas
with Father by late October or early November 2020—shortly before the
November 7, 2020 incident. Mother explained that she returned to Texas with the
children based on Father’s assurances that he was sober, although she later learned
that Father’s assurances were false: “I was . . . under the impression that he was sober
before I came back. When I came back and realized he wasn’t, I was ready to go
back.” She gave the same explanation when asked why she had bonded Father out of
jail:
Q. [BY THE DEPARTMENT] Who bonded [Father] out of jail?
A. [MOTHER] I did.
Q. Why?
A. Same thing, really. He promised me he was going to be sober. He promised -- [h]e wanted to change. He wanted to do things right. He was tired of letting the kids down. And . . . I just gave him the benefit of the doubt, really. He promised to pay me back.
Q. How many times do you think he’s promised you that he’s changed?
A. Probably too many.
Q. And as recently as January, you’ve fallen for it, right?
A. More or less.
26 As noted earlier, Father admitted using methamphetamine the same day that he
bonded out of jail.
A factfinder could reasonably question whether Father and Mother’s purported
separation was just a ploy. By separating on two occasions in the past, Father and
Mother had previously successfully retained their parental rights.
5. Evidence supporting Father and Mother
In Mother’s brief, she asserts that the evidence was undisputed that she
exhibited numerous favorable parental behaviors. At trial, Father spoke highly of
Mother’s parental abilities. When Mother’s attorney asked Father what kind of mom
she was, Father answered, “A damn good one.” We agree that the evidence showed
that Mother and Father loved Ann and Bruce. No one disputed that Father and
Mother were aware of Bruce’s MCAD deficiency and had adjusted his diet
accordingly. And no one disputed that both parents behaved appropriately during
visits. But both were attempting to parent while using drugs and engaging in
domestic violence.
6. Conclusion
When the Department removed Ann and Bruce, the Department had concerns
about domestic violence in Father and Mother’s relationship and about Father’s and
Mother’s use of drugs. About a year and a half later, a reasonable factfinder could
have concluded that those concerns persisted. This factor weighs in favor of
termination.
27 I. Holding
Paramount in the upbringing of a child are stability and permanence. In re Z.C.,
280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied) (per curiam).
Neither Father nor Mother could offer either child stability or permanence.
Neither parent could provide a safe home. The factfinder was not required to
believe that Mother had succeeded in leasing a house just as her termination trial was
winding down. Even if Mother had leased a house, a reasonable factfinder could have
concluded that Mother’s home would not be safe, given Mother’s drug use and given
her relationship with Father, or that the leased house might be a temporary reprieve,
given Mother’s previous failure to pay the rent.
Father and Mother denied domestic violence. A factfinder, however, is not
compelled to believe uncontradicted testimony that is suspicious or that comes from a
biased or an interested source. M.S., 2021 WL 2654143, at *16. Father’s and
Mother’s denials belied the fact that the police were called to their home in August
2020 and again in November 2020 for domestic disturbances, one of which—the
August 2020 eye-socket incident—involved serious injuries to Mother and other
injuries to Father. Additionally, Father had two pending assault charges, one against
Mother and the other against John Doe.
Both Father and Mother had ongoing issues with methamphetamine.
We hold that the evidence is legally and factually sufficient to show that
terminating Father’s and Mother’s parental rights was in the best interest of Ann and
28 Bruce. See J.F.C., 96 S.W.3d at 265–66; In re C.W., No. 02-21-00252-CV, 2022 WL
123221, at *13 (Tex. App.—Fort Worth Jan. 13, 2022, no pet.) (mem. op.) (addressing
legal and factual sufficiency on best interest); In re R.W., 627 S.W.3d 501, 506, 516–18
(Tex. App.—Texarkana 2021, no pet.) (same); see also In re M.R., 243 S.W.3d 807, 820–
21 (Tex. App.—Fort Worth 2007, no pet.) (holding evidence factually sufficient to
support best-interest finding because parents exposed children to domestic violence
and drug abuse, mother had failed to obtain housing and employment, and children
flourished in foster care). We overrule Father’s and Mother’s sole issues.
IV. Conclusion
Having overruled Father’s and Mother’s issues, we affirm the trial court’s
judgment.
/s/ Dabney Bassel
Dabney Bassel Justice Delivered: September 29, 2022