in the Interest of A.R., a Child

• Court: Court of Appeals of Texas
• Decided: March 26, 2020
• Docket: 07-19-00403-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00403-CV

IN THE INTEREST OF A.R., A CHILD

On Appeal from the 286th District Court Hockley County, Texas Trial Court No. 17-09-25164, Honorable Pat Phelan, Presiding

March 26, 2020

MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Appellant, R.T. (the father), appeals the trial court’s final order terminating his

parental rights to his son, A.R.1 Appellee is the Texas Department of Family and

Protective Services. Through a single issue, the father argues the evidence is legally or

1 To protect the child’s privacy, we will refer to R.T. as “the father,” the child’s mother, T.R., as “the mother,” and the child by initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2019); TEX. R. APP. P. 9.8(b). The parental rights of the mother were terminated by an earlier order of the trial court. factually insufficient to support the trial court’s two predicate-ground findings and its best-

interest finding.2 We overrule the father’s issue and affirm the judgment.3

Background

The Department’s case was largely presented before the associate judge of the

referring court. The father requested, and was granted, a trial de novo before the referring

court. That court heard the testimony of one witness and took into consideration the

transcript from the initial hearing. The father is a prison inmate. He was represented by

court-appointed counsel in the proceedings before the associate judge and the referring

court but did not personally appear in the courtroom nor did he offer testimony via

telephone, deposition, or affidavit.

The mother was called as a witness by the Department. According to her

testimony, she met the father in 2013. Thereafter, he was “locked up for two and a half

years” before being released in August 2016. From January through March 2017, the

mother and the father used methamphetamine together. During this time, the mother was

pregnant with A.R.; the father knew of the pregnancy, but smoked methamphetamine in

her presence anyway. According to the mother, the father failed to maintain sobriety or

abstain from drugs except for one month and during periods when he was incarcerated.

She described the father as “[r]eally physically abusive” toward her, and that the father

would strike her in the stomach and on the head.

2 See TEX. FAM. CODE ANN. § 161.001(b)(1) (N) (constructive abandonment), (O) (failed to comply

with a court order), and (2) (best interest) (West Supp. 2019). 3 The present appeal follows a second final hearing of the Department’s case against the father. See In re A. R., No. 07-18-00350-CV, 2019 Tex. App. LEXIS 524 (Tex. App.—Amarillo Jan. 28, 2019, no pet.) (mem. op.) (reversing judgment and remanding for a new trial).

2 A.R. was born September 11, 2017. The mother testified that when A.R. was born,

she notified the father and asked him to move to Texas to be a part of the child’s life, but

the father never came. Though the evidence suggests that the father may have lived in

Michigan during a part of the time and could not return to Texas due to his parole status,

testimony also shows the father “was clearly on the run” – the father came to Texas when

“on the run,” but not for A.R.’s birth.

When A.R. was born, both the mother and A.R. tested positive for

methamphetamines and amphetamines. In October 2017, the Department was

appointed A.R.’s temporary managing conservator; A.R. was placed with his aunt and

uncle. He remained in their care through the time of final hearing. In final hearing

testimony, the Department caseworker indicated that A.R. was a happy child and was

“thriving” in the placement.

The father told the Department that he wanted to be part of A.R.’s life and would

comply with a service plan if paternity testing established him as A.R.’s father. The father

was adjudicated A.R.’s father by order signed April 3, 2018. From September 2017

through the spring of 2018, the Department’s caseworker mailed correspondence, two

service plans, and “other court reports” to the father at his address in Michigan. In

addition, the caseworker communicated with the father by telephone or text message.

The caseworker agreed she felt “certain” she reviewed the requirements of the service

plan with the father.

A service plan prepared after the April 3 paternity order required, among other

things, the father’s participation in a drug and alcohol assessment, payment of child and

3 medical support, announced and unannounced home visitation, monthly contact with the

caseworker, a legal source of income, attendance at supervised child visitation, and

participation in individual counseling. The caseworker testified she transmitted the

second service plan to the father with an accompanying letter.

In June 2018 the father was convicted in Michigan of “drug charges and assault

with obstruction of a police officer” and sentenced to ten years’ confinement. His parole

eligibility date is March 26, 2023. When the caseworker learned of the father’s

incarceration in July 2018, she sent him letters instructing him to participate in any

services offered in prison. She also sent the father a “parenting packet” that contained

multiple lessons in childcare. The father completed the parenting lessons; in August, he

wrote a letter to the caseworker expressing his desire to return to Texas and “make a

difference in his child’s life.”

Although the caseworker sent a letter to the father each month, she only received

one letter and the father’s packet of parenting classes. The caseworker testified she

believed she spoke with the father only five times since 2018, and one of these

conversations was during the month preceding final hearing. The evidence showed the

father never met A.R., did not write A.R., and did not speak with A.R. by telephone. In

the caseworker’s opinion, the father had no relationship with A.R. The father never

offered an alternative placement for A.R.; he agreed with placement with the child’s

maternal aunt and uncle during pendency of the case.

4 Following the de novo hearing, the referring court signed a final order terminating

the father’s parental rights based on findings that he violated predicate grounds (N) and

(O) and termination was in the best interest of A.R.

Analysis

Through a single issue, the father argues the evidence was legally or factually

insufficient to support the trial court’s two predicate ground findings and its finding that

termination of his parental rights was in the best interest of A.R. The Constitution protects

“[t]he fundamental liberty interest of natural parents in the care, custody, and

management” of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388,

71 L. Ed. 2d 599 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Parental rights,

however, are not absolute, and courts have recognized it is essential that the emotional

and physical interests of a child not be sacrificed merely to preserve the parental rights.

In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The Due Process Clause of the United States

Constitution and section 161.001 of the Texas Family Code require application of the

heightened standard of clear and convincing evidence in cases involving involuntary

termination of parental rights. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C.,

96 S.W.3d 256, 263 (Tex. 2002). “Clear and convincing evidence” is that “measure or

degree of proof that will produce in the mind of the trier of fact a firm belief or conviction

as to the truth of the allegations sought to be established.” In re N.G., 577 S.W.3d 230,

235 (Tex. 2019) (per curiam) (quoting TEX. FAM. CODE ANN. § 101.007).

The Family Code permits a trial court to terminate parental rights if the movant

proves by clear and convincing evidence that the parent committed an action prohibited

5 under section 161.001(b)(1) and termination is in the child’s best interest. TEX. FAM. CODE

ANN. § 161.001(b)(1),(2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Only one

predicate finding under section 161.001(b)(1) is necessary to support an order of

termination when there is also a finding that termination is in a child’s best interest. In re

A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re T.N., 180 S.W.3d 376, 384 (Tex. App.—

Amarillo 2005, no pet.). Thus a termination order may be affirmed if it is supported by

legally and factually sufficient evidence of any statutory ground on which the trial court

relied for termination, and the best-interest finding. In re E.A.G., 373 S.W.3d 129, 141

(Tex. App.—San Antonio 2012, pet. denied).

Under the legal sufficiency analysis, we examine all the evidence in the light most

favorable to the challenged finding, assuming the “factfinder resolved disputed facts in

favor of its finding if a reasonable factfinder could do so.” In re J.F.C., 96 S.W.3d at 266.

We disregard all contrary evidence the factfinder could have reasonably disbelieved or

found incredible. Id. However, we take into account undisputed facts that do not support

the finding, so as not to “skew the analysis of whether there is clear and convincing

evidence.” Id. If the record presents credibility issues, we must defer to the factfinder’s

determinations provided they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573

(Tex. 2005).

In a factual sufficiency review, a court of appeals must give due consideration to

the evidence the factfinder reasonably could have found to be clear and convincing. In

re C.H., 89 S.W.3d at 25. We determine whether the evidence is such that a factfinder

could reasonably form a firm belief or conviction about the truth of the Department’s

allegations. Id. In doing so we consider whether disputed evidence is such that a

6 reasonable factfinder could not have resolved that disputed evidence in favor of its

finding. Id. 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, then the evidence is factually

insufficient. In re J.F.C., 96 S.W.3d at 266.

Predicate Ground Finding

Constructive Abandonment, § 161.001(b)(1)(N):

A parent constructively abandons a child when (1) the child has been in the

permanent or temporary managing conservatorship of the State or an authorized agency

for not less than six months, (2) the State or the authorized agency has made reasonable

efforts to return the child to the parent, (3) the parent has not regularly visited or

maintained significant contact with the child, and (4) the parent has demonstrated an

inability to provide the child with a safe environment. TEX. FAM. CODE ANN.

§ 161.001(b)(1)(N); In re M.R., No. 07-13-00440-CV, 2014 Tex. App. LEXIS 6220, at *7

(Tex. App.—Amarillo June 9, 2014, no pet.) (mem. op.). While the singular circumstance

of imprisonment does not establish constructive abandonment, subsection (N) can be

applied to incarcerated parents. In re M.D.P., No. 11-18-00146-CV, 2018 Tex. App.

LEXIS 9457, at *6-7 (Tex. App.—Eastland Nov. 20, 2018, no pet.) (mem. op.) (citing In

re A.H., No. 02-12-00444-CV, 2013 Tex. App. LEXIS 3104 (Tex. App.—Fort Worth Mar.

21, 2013, no pet.) (mem. op.); In re D.S.A., 113 S.W.3d 567, 573-74 (Tex. App.—Amarillo

2003, no pet.)).

7 We discern the father’s argument on appeal to be that the evidence is insufficient

to prove the second and third prongs, viz., the Department made reasonable efforts to

return A.R. to the father and because of incarceration the father was unable to regularly

visit or maintain significant contact with A.R. It is self-evident that a child cannot be placed

with his parent in a prison cell. Implementation of a service plan by the Department may

be considered a reasonable effort to return a child to his parent. In re N.R.T., 338 S.W.3d

667, 674 (Tex. App.—Amarillo 2011, no pet.). Here, though, the evidence does not show

the degree of implementation of service plan terms typically seen in cases in which the

Department relies on a service plan for its reasonable efforts. See In re K.C., No. 07-18-

00282-CV, 2018 Tex. App. LEXIS 10774, at *8 (Tex. App.—Amarillo Dec. 21, 2018, pet.

denied) (mem. op.) (so stating).

Implementation of a service plan, however, is not the only means by which the

Department can demonstrate reasonable efforts to return a child to a parent for purposes

of satisfying subsection (N). In re K.J.T.M., No. 06-09-00104-CV, 2010 Tex. App. LEXIS

3057, at *13 n.12 (Tex. App.—Texarkana Apr. 27, 2010, no pet.) (mem. op.) (describing

the reasonableness of the Department’s return efforts to be a “sliding scale, depending

on the situation”). The record shows the Department’s efforts to encourage the father

toward responsible parenthood. In addition to the caseworker’s instruction that the father

should participate in services offered in prison, she sent him a “parenting packet”

containing lessons in childcare. The caseworker also communicated with the father by

sending him a letter each month and spoke with him by telephone five times. After

reviewing the entire record, we conclude the trial court’s finding that the Department made

reasonable efforts to return A.R. to the father is supported by legally sufficient evidence.

8 See In re K.M.L., 443 S.W.3d 101, 112-13, 116 (Tex. 2014) (legal sufficiency standard).

Likewise, when assessed in a neutral light we conclude this finding was factually

sufficient. See In re A.B., 437 S.W.3d 498, 502-03 (Tex. 2014) (factual sufficiency

standard).

With regard to the element that the father has not regularly visited or maintained

significant contact with the child, the father appears to contend that incarceration

somehow excused him from visiting or maintaining contact with A.R. The father does not

direct us to any authority for the position. Nevertheless, the record reflects that the father

took no steps to reach out to his son, either before or after incarceration. He neither wrote

nor called A.R. The caseworker opined without objection that the father had no

relationship with A.R. We conclude the evidence supporting the trial court’s finding that

the father has not regularly visited or maintained significant contact with A.R. is supported

by legally and factually sufficient evidence. Because parental rights may be terminated

on only one predicate-ground finding when coupled with a best-interest finding, our review

of the father’s subsection (O) challenge is not necessary for the disposition of this appeal.

See TEX. R. APP. P. 47.1. We turn then to whether termination of the parent-child

relationship was in the best interest of A.R.

Best Interest Finding

To assess the trial court’s best-interest determination, we may consider the factors

itemized in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).4 While the Holley “listing is by

4 The Holley factors are: (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

9 no means exhaustive, [it] does indicate a number of considerations which either have

been or would appear to be pertinent.” Holley, 544 S.W.2d at 372.5 “The absence of

evidence about some of these considerations would not preclude a fact-finder 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.” In re C.H., 89 S.W.3d at 27. In some circumstances,

evidence of even one Holley factor may be sufficient. Jordan v. Dossey, 325 S.W.3d 700,

729 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing In re C.H., 89 S.W.3d at

27).

Much of the evidence relevant to the predicate ground finding is also relevant to

the best-interest determination. See In re F.R., No. 07-19-00215-CV, 2019 Tex. App.

LEXIS 9670, at *10 (Tex. App.—Amarillo Nov. 4, 2019, no pet.) (mem. op.) (noting

evidence supportive of (D) ground finding was also relevant to best-interest

determination). Based on a convicting offense the caseworker described as “drug

charges and assault with obstruction of a police officer,” the father will not become parole

eligible until 2023. Until released, he will remain incarcerated in a Michigan facility. The

father has not met A.R. and has no relationship with him.

seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which 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. Holley, 544 S.W.2d at 371-72.

5 See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (citing Family Code section 263.307

[“Factors in Determining Best Interest of Child”] and Holley as providing factors for consideration “when determining whether termination of parental rights is in the best interest of the child” and also referencing Family Code section 153.131(b) which provides “a strong presumption that the best interest of a child is served by keeping the child with a parent”).

10 Moreover, the father presented no plans for developing a healthy relationship with,

and properly caring for, his son. He did not offer an alternative placement and agreed

with the Department’s relative placement during pendency of the case. The father paid

no child support, nor was there evidence he paid anything toward the care of A.R.

Further, the trial court heard testimony of the father’s past drug usage, criminal conduct,

lack of sobriety, and abusive treatment of the mother. In conjunction with the best-interest

determination, we have noted a parent’s past endangering conduct is often prologue. In

re A.M., Nos. 07-18-00047-CV, 07-18-00048-CV, 2018 Tex. App. LEXIS 3688, at *7 (Tex.

App.—Amarillo May 23, 2018, pet. denied) (per curiam, mem. op.) (citation omitted). A.R.

is thriving in his relative placement with the prospect of adoption on termination of the

father’s parental rights. We conclude the trial court’s best-interest finding is supported by

legally and factually sufficient evidence.

Because sufficient evidence supports the trial court’s subsection (N) and best-

interest findings, we overrule the father’s issue on appeal.

Conclusion

Having resolved the father’s issue against him, we affirm the judgment of the trial

court.

Lawrence M. Doss Justice