in the Interest of A.T.-W. and A.T.-W., Children

• Court: Court of Appeals of Texas
• Decided: August 29, 2019
• Docket: 07-19-00141-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-19-00141-CV ________________________

IN THE INTEREST OF A.T.-W. AND A.T.-W., CHILDREN

On Appeal from the County Court at Law Number 1 Randall County, Texas Trial Court No. 72,600-L1; Honorable James Anderson, Presiding

August 29, 2019

MEMORANDUM OPINION Before QUINN, CJ., and CAMPBELL and PIRTLE, JJ.

Appellant, S.T.-B.,1 the natural mother of two children, A.T.-W. and A.T.-W.,

appeals the trial court’s order terminating her parental rights to those children.2 In a single

issue, she asserts that the trial court erred in finding there was clear and convincing

1 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2017). See also TEX. R. APP. P. 9.8(b).

2The children’s father, G.W., was a party to the proceedings and his parental rights were also terminated. He has not appealed that determination. evidence that it was in the best interest of the children to terminate her parental rights.

We affirm the trial court’s order.

APPLICABLE LAW

The Texas Family Code permits a court to voluntarily terminate the relationship

between a parent and a child if the Department of Family and Protective Services

establishes that a parent has engaged in one or more of the twenty-one predicate acts or

omissions enumerated under section 161.001(b)(1) of the Code and it finds that the

termination of that relationship is in the best interest of the child. See TEX. FAM. CODE

ANN. § 161.001(b)(1)(A)-(U), (b)(2) (West Supp. 2018).3 See also In re N.G., No. 18-

0508, 2019 Tex. App. LEXIS 465, at *1 (Tex. 2019) (per curiam) (holding that while only

one predicate finding under section 161.001(b)(1) is necessary, an appellate court may

be required to review additional predicates where, as here, the trial court has based its

ruling, in whole or in part, upon section 161.001(b)(1)(D) or (E)). In parental termination

cases, due process mandates that the Department establish its case by a clear and

convincing standard of proof. In re N.G., 2019 Tex. App. LEXIS 465, at *7; § 161.206(a)

(West 2014). “‘Clear and convincing evidence’ means the 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.” § 101.007 (West 2014).

BACKGROUND

In August 2017, A.T.-W. and A.T.-W., females ages five and six respectively, were

in the custody of their mother, S.T.-B., and father, G.W. The Department received

information that S.T.-B. and G.W. were using drugs in the presence of the children and

3 For simplicity, we will cite provisions of the Texas Family Code throughout the remainder of this

memorandum opinion simply as “section ____” or “§ ____.” 2 that S.T.-B. was leaving the children with a grandmother who was living in a drug house.

When the family was tested for illegal substances, S.T.-B. tested positive for cocaine as

did the children, and G.W. tested positive for marijuana. The Department initiated a safety

plan whereby the parents agreed that the children and G.W. would reside with the

children’s aunt in a drug-free environment apart from S.T.-B.

Upon learning that G.W. was not staying at the aunt’s house and the children were

in a drug house where they were exposed to crack cocaine, the Department filed its

Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit

Affecting the Parent-Child Relationship in September 2017. The Petition asserted S.T.-

B. had violated multiple provisions of the Family Code that justified termination of her

parental rights. § 161.001(b)(1)(A)-(F), (K), (M)-(Q). The children were removed and

placed in foster care.

S.T.-B. entered into a family service plan that was adopted as part of a Status

Hearing Order entered by the trial court.4 Pursuant to the plan, S.T.-B. agreed to

participate in and complete rational behavior therapy, notify the Department of any

changes in address, maintain regular contact with her caseworker, maintain a drug-free

lifestyle and abstain from the use of illegal drugs, submit to random drug tests, locate and

maintain stable housing with functioning utilities, and participate in supervised visitation

with the children one hour per week. She also agreed to complete individual counseling,

parenting classes, a psychological evaluation, and a substance abuse evaluation.

4 The trial court’s order states “having reviewed the service plans filed by the Department, [the trial

court] finds . . . that the service plans are reasonable, accurate, and in compliance with the previous orders of the Court.” 3 At the final hearing, the State’s evidence established that although S.T.-B. tested

negative for drugs several times during the proceedings, from September 2017 through

February 2019, she tested positive for cocaine eight times. When she and her newborn

infant, Z.A., tested positive for cocaine in July 2018, Z.A. was removed and is the subject

of another termination proceeding.5 In May 2018, S.T.-B. was arrested for driving while

intoxicated after striking a police car at 5:50 a.m. She was driving with a suspended

license and had five outstanding warrants.

Although she did work on her service plan, she did not complete her rational

behavior therapy, notify the Department of address changes, maintain a drug-free lifestyle

and abstain from illegal drug use, or complete substance abuse counseling. Because

S.T.-B. continued to test positive for drugs, her caseworker believed that she had not

mitigated the reasons for the removal of the children. As a result, the caseworker believed

that, if the children were returned to S.T.-B., they would be at risk of being exposed to

further drug use by their mother or others who were a part of the household or visited the

residence.6 Further, despite the fact that S.T.-B. continued to test positive for cocaine

after the initial removal and approximately a year later she and her newborn Z.A. tested

positive as well, S.T.-B. continued to maintain that she did not do drugs and was uncertain

why her children tested positive for cocaine.7

5 Z.A. was fathered by D.A., S.T.-B.’s paramour since G.W. went to prison for drug-related offenses.

D.A. also served time in prison for drug-related offenses.

6 S.T.-B.’s individual counselor was concerned that if S.T.-B. were given custody of the children when she was unable to identify the source of the drugs despite that she and her children tested positive for cocaine, then she would not be capable of protecting the children from such exposure.

7In November 2018, her individual counselor recommended that future therapy be discontinued because of her continued denial of drug use despite positive drug screens and the inability to contribute therapeutically to the issues as a result of her belief that she is neither around nor using drugs. Although the counselor did three more sessions in January 2019 at S.T.-B.’s request, he testified that his opinion was unchanged at the conclusion of the three additional sessions. 4 The Department’s caseworker testified that S.T.-B. posed a danger to her

children’s emotional and physical well-being because she continued to test positive for

cocaine and was unaware or unable to identify the source that contaminated her children

in the residence. As a result, having failed to mitigate the reasons for the children’s

removal, the caseworker opined that it was in the children’s best interests that they remain

in foster care where the children were in a stable, drug-free environment, doing well

medically, and receiving consistent care.

When the final hearing was held, S.T.-B. was continuing to work nights as a

cocktail waitress at a nightclub in Amarillo, Texas. She lived in a rent house with D.A.,

the father of Z.A. S.T.-B. testified that she would be leaving the nightclub and had a job

waiting for her doing housework in a hotel. She also testified that she wanted to move to

Lubbock to be with her father who said he was willing to take her and the children. Until

she was able to get her driver’s license, she and the children would take public

transportation.

In March 2019, Associate Judge Jack M. Graham issued an order finding by clear

and convincing evidence that the termination of S.T.-B.’s parental rights to A.T.-W. and

A.T.-W. was warranted based on three predicate grounds: (1) section 161.001(b)(1)(D)

(knowingly placed or allowed the children to remain in conditions or surroundings which

endangered the physical or emotional well-being of the children); (2) section

161.001(b)(1)(E) (knowingly endangered the children’s physical and emotional well-

being); and (3) section 161.001(b)(1)(O) (failing to take specified actions necessary for

return of the children). In addition, the trial court found that termination of the parent-child

relationship was in the best interests of the children pursuant to section 161.001(b)(2).

Thereafter, S.T.-B. requested a de novo hearing asserting the evidence was insufficient 5 to support a finding that dismissing her as a possessory conservator of A.T.-W. and A.T.-

W. was in their best interests.

In March, the Honorable James Anderson granted S.T.-B.’s request for a de novo

hearing and considered the entire record from the prior hearing. In April, he affirmed the

order of the associate judge. On appeal, S.T.-B. contends that the trial court erred in

finding there was clear and convincing evidence that it was in the children’s best interests

to terminate her parental rights. We disagree.

STANDARD OF REVIEW

The natural right existing between parents and their children is of constitutional

dimension. See Santosky v. Kramer, 455 U.S. 745, 758-759, 102 S. Ct. 1388, 71 L. Ed.

2d 599 (1982). See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently,

termination proceedings are strictly construed in favor of the parent. In re E.R., 385

S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are not absolute, and it is

essential that the emotional and physical interests of a child not be sacrificed merely to

preserve those rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). Furthermore, when

reversing a termination based on insufficient evidence, an appellate court must “detail the

evidence relevant to the issue of parental termination and clearly state why the evidence

is insufficient to support a termination finding by clear and convincing evidence.” In re

A.B., 437 S.W.3d 498, 503 (Tex. 2014).

As previously stated, the Due Process Clause of the United States Constitution

and the Texas Family Code require the application of a heightened standard of “clear and

convincing evidence” in cases involving involuntary termination of parental rights. See In

re N.G., 2019 Tex. LEXIS 465, at *1 (citing In re A.B., 437 S.W.3d at 502)). The Supreme

6 Court has recently determined that, when reviewing the sufficiency of the evidence to

support a predicate ground for termination, due process requires an appellate court to

review the sufficiency of proof under section 161.001(b)(1)(D) or (E), even when another

ground is sufficient for termination due to the potential collateral consequences arising

from the possible termination of parental rights as to a different child. Id. at *7-8. Because

S.T.-B. does not contest any of the predicate grounds for termination under section

161.001(b)(1), we will limit our analysis to whether the evidence establishes that

termination was in the best interests of the children according to a clear and convincing

standard of proof. See In re N.G., 2019 Tex. LEXIS 465, at *8.

BEST INTEREST UNDER SECTION 161.001(b)(2)

As stated above, the Department is required to prove by clear and convincing

evidence that termination of S.T.-B.’s parental rights was in the best interests of A.T.-W.

and A.T.-W. See § 161.001(b)(2); In re K.M.L., 443 S.W.,3d 101, 116 (Tex. 2014). Only

if no reasonable fact finder could have formed a firm belief or conviction that termination

of her parental rights was in the best interest of each child can we conclude the evidence

to be insufficient. Id. (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).

In that regard, there is a strong presumption that the best interest of a child is

served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex.

2006). Keeping that principle in mind, we must further acknowledge that prompt and

permanent placement of a child in a safe environment is also presumed to be in that

child’s best interest. See § 263.307(a) (West Supp. 2018).

In order to access the trial court’s best interest determination, we may consider

any of the thirteen factors itemized in the non-exhaustive list of factors found in section

7 263.307(b). Similarly, the Supreme Court has set out other factors to consider when

determining the best interest of a child. See Holley v. Adams, 544 S.W.2d 367, 371-72

(Tex. 1976). Those factors include (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 individual seeking

custody; (5) the programs available to assist the individual or by the agency seeking

custody; (6) the plans for the child by the individual or by the agency seeking custody; (7)

the stability of the home or proposed placement; (8) the acts or omissions of the parent

that may indicate that the existing parent-child relationship is not a proper one; (9) any

explanation or excuse for the acts or omissions of the parent. Importantly, mere absence

of evidence about some of these considerations does not preclude a fact finder from

reasonably forming a firm belief or conviction that termination is in the best interest of a

child, particularly if the evidence is undisputed that the parental relationship has

endangered the safety of the child. In re C.H., 89 S.W.3d at 27; In re A.C., 394 S.W.3d

633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

A best interest analysis may consider circumstantial evidence, subjective factors,

and the totality of the evidence, as well as direct evidence. See In re N.R.T., 338 S.W.3d

667, 677 (Tex. App.—Amarillo 2011, no pet.). Additionally, a child’s need for permanence

through the establishment of a “stable, permanent home” has been recognized as the

paramount consideration in determining best interest. See In re K.C., 219 S.W.3d 924,

931 (Tex. App.—Dallas 2007, no pet.).

ANALYSIS

Applying the Holley factors to determine whether termination of S.T.-B.’s parental

rights was in the best interests of A.T-W. and A.T.-W., we find the first factor, the desires 8 of the child, inapplicable because the children are too young to make a meaningful

decision about their placement. When considering the second factor, the emotional and

physical needs of the children now and the future, we find this factor favors the

Department’s position because S.T.-B. left her children in the care of persons who were

using cocaine while S.T.-B. tested positive for cocaine throughout the proceedings with

few exceptions. The third factor, the emotional and physical danger to the children now

and in the future also weighs in favor of termination because S.T.-B. tested positive for

cocaine use during the proceedings, denied using any drugs, and claimed that she could

not identify the source that contaminated the children. The fourth factor, the parental

abilities of the person seeking custody also weighs in favor of termination because S.T.-

B. failed to demonstrate an ability to cease using cocaine or protect her children from the

drug. When her children were initially removed, she and the children tested positive for

cocaine. Almost a year later, when Z.A. was a newborn and the other children were in

foster care, she and Z.A. both tested positive for cocaine.

Regarding the fifth factor, programs available to assist S.T.-B. in regaining custody,

although there were many programs available to assist her to promote the best interests

of the children, S.T.-B. attended important programs in the service plan sporadically and

failed to complete several of them. The sixth factor, S.T.-B.’s plans for the children, also

weighs in favor of termination because there was very little evidence at the final hearing

that indicated she had any concrete plans for the children’s future. As to the seventh

factor, the suitability of the home or proposed placement, there was little evidence S.T.-

B. had taken any concrete steps toward creating a protective, drug-free environment or

stable, living environment for the children. Regarding the eighth factor, the acts or

omissions of a parent indicating the lack of proper parent-child relationship, S.T.-B.’s

9 continued drug use and positive drug tests of her children indicate that the existing parent-

child relationship was weak and improper and the prospect for an improved and healthy

relationship was discouraging. Regarding the ninth factor, any excuse for the acts or

omissions leading to the filing of the termination proceeding, S.T.-B. did not provide any

evidence or viable explanation for her drug use or the positive drug tests of her children.

Despite the many positive tests, she continued to assert that she did not use drugs and

hypothesized that her children were contaminated by others.

On the other hand, since their removal, A.T.-W. and A.T.-W. have been living in a

foster home that provides a safe and stable environment that is drug-free. All of their

needs are being met by their foster parents. Accordingly, we find there was sufficient

evidence to support the order issued by Judge Anderson finding that, under a clear and

convincing evidence standard of proof, termination of S.T.-B.’s parental rights was in the

best interests of A.T.-W. and A.T.-W. As such, we overrule her single issue.

CONCLUSION

The trial court’s order terminating S.T.-B.’s parental rights to A.T.-W. and A.T.-W.

is affirmed.

Patrick A. Pirtle Justice