in the Interest of B.A.B. and T.G.K.

• Court: Court of Appeals of Texas
• Decided: February 2, 2023
• Docket: 09-22-00270-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00270-CV __________________

IN THE INTEREST OF B.A.B. AND T.G.K.

__________________________________________________________________

On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 21-06-08302-CV __________________________________________________________________

MEMORANDUM OPINION

Brenda seeks to overturn the trial court’s final order terminating

her parental rights to her children, Brett and Kendall.1 The parties tried

the case to the bench. On appeal, Brenda argues the evidence is legally

and factually insufficient to support the trial court’s findings that

terminating her parental rights is in her children’s best interest.2

1We use pseudonyms to protect the minors’ identities. Tex. R. App. P. 9.8 (Protection of Minor’s Identity in Parental-Rights Termination Cases). 2See Tex. Fam. Code Ann. § 161.001(b) (authorizing courts to

terminate the parent-child relationship on a predicate finding on one or 1 We conclude the evidence is legally and factually sufficient to

support the trial court’s best-interest findings. For the reasons explained

below, we will affirm.

Background

In June 2021, the Department of Family and Protective Services

filed a Petition to terminate Brenda’s parental rights on seven grounds,

ground that included allegations that Brenda had endangered her

children. 3 The Department’s petition was supported by an affidavit

signed by a Child Protective Specialist for the Department. The

supporting affidavit explained that based on a referral the Department

received in March 2021, the Department opened an investigation to

determine whether Brenda was properly caring for and supervising her

children based on concerns that Brenda was using methamphetamine.

According to the Specialist’s affidavit, Brenda told him in his

investigation she had used meth in the past. And she said she had been

diagnosed with manic bipolar disorder, anxiety, and schizophrenia.

Brenda agreed to an in-home safety plan for her children, and she agreed

more of the grounds listed in section 161.001(b)(1) when a finding in section 161.001(b)(1) is coupled with a best-interest finding under section 161.001(b)2). 3Id. § 161.001(b)(1)(D), (E), (F), (K), (N), (O), (P).

2 to be tested for illicit drugs. The Specialist goes on to state that the

results of the tests were positive for marijuana and negative for meth.

The affidavit then explained what transpired over the course of the

next four months. We mention only a few of those details here. The

Specialist’s affidavit reveals that Brenda’s ability to provide suitable

housing for herself and her children became increasingly unstable

between May and June 2021. By late May 2021, Brenda and her children

were living in the Montgomery County Women’s Center. On June 3, 2021,

Brenda left the Women’s Center, and she left Brett and Kendall with

Daphne, the mother of a man whom we will refer to as Kent, when she

ended her relationship with Kent in late October or early November

2019.4 During the investigation, the Department learned that Brenda

has a criminal history, which included convictions related to meth. The

Department’s investigation also revealed that Brenda had a history with

the Department, which began before Brett and Kendall were born. Her

history involved some of Brenda’s other children who had been removed

from Brenda’s care. According to the affidavit, those children were also

4In the trial, Brenda testified she lived with Kent, off and on, for the first two years of Brett’s life. The Department sued Kent alleging that he was Brett’s presumed father and Kendall’s alleged father. 3 removed over concerns relating to Brenda’s use of meth and over concerns

relating to the safety of the children that the Department discovered

when the Department’s investigators inspected the homes where these

other children were being raised.

In July 2022, the parties tried the case to the bench. Four witnesses

testified in the trial: (1) Brenda; (2) Daphne; (3) Brett’s and Kendall’s

Court Appointed Special Advocate (the CASA); and (4) The Caseworker

the Department assigned to Brett and Kendall’s case in September 2021.

During the trial, Brenda testified she has a thirteen-year history of

using meth. Kent was represented by appointed counsel in the trial.

Based on DNA testing admitted into evidence, the trial court found that

Kent “is not the father of [Brett].” 5 At trial and on appeal, she argues the

evidence shows that since February 2022, she has not used illicit drugs.

Still, the other three witnesses who testified said that they felt it is in the

children’s best interest for the court to terminate Brenda’s parental

rights.

5Based on the DNA test results, the trial court ordered the Vital Statistics Unit to amend Brett’s birth record by removing Kent from its record as Brett’s father. As to Kendall, the trial court terminated Kent’s parental rights to the extent he had rights to her since Kent didn’t file a claim to be Kendall’s father in response to the Department’s suit. Kent did not appeal from the order terminating his rights. 4 On appeal, Brenda argues the evidence is legally and factually

insufficient to support the trial court’s best-interest findings because the

Department failed to introduce evidence on each of the factors that courts

use to guide their decisions about whether terminating a parent’s

relationship with a child is in a child’s best interest. 6 Except for Brenda’s

challenge to the trial court’s best-interest finding, Brenda hasn’t

challenged the other findings the trial court relied on to terminate her

parental rights, including its findings that Brenda placed her children in

conditions or surroundings and engaged in conduct or placed her children

with persons who engaged in conduct that endangered their physical or

emotional well-being. 7

6In Holley v. Adams, the Texas Supreme Court applied these eight nonexclusive factors in reviewing a best-interest finding: • the child’s desires; • the child’s emotional and physical needs, now and in the future; • the parenting abilities of the parties seeking custody; • the programs available to assist the parties seeking custody; • the plans for the child by the parties seeking custody; • the stability of the home or the proposed placement; • the parent’s acts or omissions that reveal the existing parent- child relationship is improper; and • any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 7Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).

5 Standard of Review

At trial, the Department of Family and Protective Services had the

burden to prove the allegations in its petition by clear and convincing

evidence. 8 As defined by the Family Code, 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.”9 In a case tried to the bench, the trial court acts

as the factfinder, determines what witnesses are credible, decides what

weight to give the testimony, and is free to resolve the inconsistencies

that may exist in the testimony. 10

Under a legal-sufficiency review, we determine whether “a

reasonable trier of fact could have formed a firm belief or conviction that

its finding was true.” 11 In reviewing the evidence, we “look at all the

evidence in the light most favorable to the finding,” “assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable

8SeeIn the Interest of J.W., 645 S.W.3d 726 (Tex. 2022); Tex. Fam. Code Ann. § 161.001(b). 9Tex. Fam. Code Ann. § 101.007. 10See Iliff v. Iliff, 339 S.W.3d 74, 83 (Tex. 2011); City of Keller v.

Wilson, 168 S.W.3d 802, 819 (Tex. 2005); McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). 11In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

6 factfinder could do so,” and “disregard all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible.”12

Still, in our review we will not disregard “undisputed facts that do not

support the finding” that a party is challenging in an appeal.13 When

deciding whether a reasonable trier of fact could have formed a firm belief

or conviction that the evidence supports a finding challenged in an

appeal, we defer to the factfinder’s role as the “sole arbiter of the

witnesses’ credibility and demeanor” when the inferences it drew from

the evidence before it were reasonable. 14

When conducting a factual-sufficiency review, we “give due

deference” to the findings that are based on the direct and circumstantial

evidence admitted by the trial court in the trial. 15 In a factual sufficiency

review, the question we must decide is not what we would have found

from the evidence had we been seated as the factfinder.16 Rather the

question is whether from the evidence as a whole the factfinder could

12Id. 13Id. 14In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021); see In re J.W., 645 S.W.3d at 741. 15In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (cleaned up). 16Id.

7 “reasonably form a firm belief or conviction about the truth of the

[Department’s] allegations.” 17

On appeal, to support an argument that the evidence is factually

insufficient to support a verdict, the parent challenging the verdict

should explain why the factfinder could not have credited the evidence

the parent challenges in favor of the finding the parent disputes. 18 A

reviewing court will not find the evidence factually insufficient unless “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 favor of its finding. 19

When deciding whether terminating a parent’s rights is in a child’s

best interest, the inquiry is necessarily “child-centered and focuses on the

child’s well-being, safety, and development.” 20 Generally, when

examining the evidence supporting a best-interest finding, we compare

the evidence admitted in a trial against the nonexclusive factors the

17In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 18See In re J.F.C., 96 S.W.3d at 266. 19Id. at 267. 20In re A.C., 560 S.W.3d 624, 631 (Tex. 2018).

8 Texas Supreme Court identified in Holley v. Adams. 21 Yet the factors set

out in Holley aren’t exclusive, and the evidence that relates to a

factfinder’s normal decision-making process in finding what’s in a specific

child’s best interest need not include evidence addressing all eight Holley

factors. 22

For example, when probative, evidence on any one of the more than

twenty-one predicate grounds for terminating a parent’s rights may

provide support for a trial court’s best-interest finding.23 That’s often the

case when, as here, the factfinder found that the parent endangered her

child. When a parent has been found to have endangered their child, the

absence of evidence on one or more of the Holley factors generally will not

“preclude a factfinder from reasonably forming a strong conviction or

belief that termination is in the child’s best interest.” 24

21See Holley, 544 S.W.2d at 371-72. 22In re C.H., 89 S.W.3d at 27 (noting the lack of evidence on some Holley factors “would not preclude a factfinder from reasonably forming a strong belief or conviction that termination is in the child’s best interest”). 23Id. at 27-28. 24Id. at 27.

9 Analysis

In her appeal, Brenda didn’t challenge the trial court’s conduct and

condition endangerment findings. 25 Instead, Brenda argues the evidence

is insufficient to overcome the presumption that appointing a parent as

a child’s joint-managing conservator is in the child’s best interest.26

According to Brenda, the Department failed to overcome that

presumption because it failed to introduce evidence on several of the

factors the Texas Supreme Court identified in Holley. 27 For instance,

Brenda notes there isn’t any direct testimony in the record about her

children’s desires. Yet Brenda acknowledges the trial court heard

evidence that the children are “bonded in their current placement.” And

Brenda notes the Department introduced testimony showing the

Department’s plans for the children are to have them to be adopted by a

family with whom the children are not biologically related.

Brenda is also critical of the quantity of the evidence the

Department introduced addressing Brett’s and Kendall’s emotional and

25See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). 26Id. § 153.131(b); see also In re R.R., 209 S.W.3d 112, 116 (Tex.

2006) (noting that a “strong presumption” exists in keeping a child with its parents). 27See Holley, 544 S.W.2d at 371-72.

10 physical needs. Brenda characterizes that evidence as “scant.” As Brenda

tells it, the Department presented no testimony indicating her children

have “special needs of any kind.” Brenda argues that except for the

Department’s plans proposing to have her children adopted by an

unrelated family, the trial court heard little other evidence about what

the Department’s plans are for her children, what the proposed adoptive

family plans are for them, and how stable the adoptive family’s home

might be should her children be adopted into that home. According to

Brenda, all she needs is more time to gain the skills and employment

required so that she as their parent may meet her children’s needs.

Finally, Brenda—who was twenty-eight-years old when the case

was tried—acknowledges the trial court heard testimony showing she

has struggled “with sobriety, homelessness, and was the victim of

domestic abuse.” Brenda downplays that testimony, describing the

testimony as mostly “past events” that “occurred . . . when she was in her

late teens and early twenties.” Brenda distances herself further from her

own choices by claiming she asked for help from members of her family

“to remedy these shortcomings[,]” noting there is evidence showing she

arranged to have members of her family take care of her children during

periods she could not. Although Brenda didn’t identify the members of 11 her family she referred to in her brief, the evidence before the trial court

shows she left Brett and Kendall with Daphne who testified that Brenda

made choices that did not allow her children to have a safe home. The

DNA testing also established that Kent is not Brett’s biological father,

and there is scant evidence in the record that Kent is Kendall’s biological

father.28 So while Daphne testified that she is Brett’s and Kendall’s

paternal stepmother, the evidence in the record proves she is not

biologically related to Brett, and the record contains scant evidence to

prove she is biologically related to Kendall. Despite all that, Brenda

testified she trusted Daphne, Brett and Kendall are bonded to Daphne,

and Daphne has provided the children with competent care.

In her brief, Brenda points to the evidence that favors the finding

she wanted but didn’t obtain while she ignores and minimizes the

evidence the trial court could have reasonably credited in finding that

28When the Department’s attorney asked Brenda whether Kent was Kendall’s father, she said: “I don’t know the correct term. Alleged father.” Later, Brenda testified that Kent told her he was claiming he was Kendall’s father. Kent didn’t testify in the trial. That said, Brenda testified there were two other men, whom she named, who she thought could be Kendall’s father. No DNA test results were admitted or offered into evidence addressing whether Kent is Kendall’s biological father. Kent was represented in the trial by appointed counsel, but there is no answer for him in the Clerk’s Record we have before us in the appeal. 12 terminating her relationship is in her children’s best interest. As a

reviewing court, we “look at all the evidence in the light most favorable”

to the trial court’s finding, and we don’t look at the evidence in the light

that Brenda has favoring the finding she asked for in the trial.29 So while

we concede the record doesn’t contain testimony that addresses each of

the Holley factors, that’s not what Holley required. 30 In explaining what

quantum of evidence Holley requires, we have repeatedly stated: “No

particular Holley factor is controlling, and evidence of one factor may be

sufficient to support a finding that termination is in a child’s best

interest.” 31

As already mentioned, the trial court’s findings that Brenda

endangered her children are undisputed. In her brief, Brenda hasn’t

explained why the trial court’s endangerment findings alone don’t offer

sufficient support for the trial court’s finding that terminating her

29In re J.F.C., 96 S.W.3d at 266. 30See In re C.H., 89 S.W.3d at 27. 31In re K.F. & K., No. 09-21-00078-CV, 2021 Tex. App. LEXIS 7067,

at *17 (Tex. App.—Beaumont Aug. 26, 2021, no pet.); In re B.S., No. 09- 21-00080-CV, 2021 Tex. App. LEXIS 6629, at *13 (Tex. App.—Beaumont Aug. 12, 2021, no pet.); In re B.P., No. 09-21-00038-CV, 2021 Tex. App. LEXIS 5000, at *14 (Tex. App.—Beaumont June 24, 2021, no pet.); Interest of J.S., No. 09-20-00294-CV, 2021 Tex. App. LEXIS 4574, at *32 (Tex. App.—Beaumont June 10, 2021, no pet.). 13 parental rights is in their best interest. The trial court could have

reasonably concluded that terminating Brenda’s parental rights was

required to prevent Brenda from endangering her children again, based

on her historic patterns of addiction. 32

By Brenda’s own account, she has a thirteen-year history of using

meth. Brenda’s testimony shows she has unsuccessfully tried to stop

using meth more than once. In 2018, after Brenda quit using meth when

she was pregnant with Brett, Brenda started using meth again. She

started again, she said, because she became “depressed because [she] did

not have [her] son.” The trial court also heard Brenda testify that Kent

used meth in their home after Brett was born. According to Brenda, she

stopped using meth again when she found out she was pregnant with

Kendall. But Brenda explained she began using meth again following

Kendall’s birth, dating her sobriety to February 2022. In February 2022,

Kendall would have been about two-years old. And by dating her sobriety

to February 2022, the trial court could also have inferred that Brenda

used meth at times even after the Department sued her in June 2021 and

asked the trial court to terminate her parental rights.

32In re C.H., 89 S.W.3d at 27. 14 The Caseworker for the Department testified that terminating

Brenda’s parental rights would, in her opinion, be in Brett’s and

Kendall’s best interest. According to the Caseworker, the Department’s

current plans are for the children to be adopted by nonrelatives.

Currently, a family is visiting with the children who is interested in

adopting them under a plan that targets having the children with the

adoptive family and enrolled in school in the fall. The Caseworker based

her opinion about terminating Brenda’s parental rights on Brenda’s

history of substance abuse, Brenda’s account that “she has a mental

health disorder [] for which she is not seeking or following treatment[,]”

and Brenda’s lack of “contact with her children from October of 2021 until

June of 2022.”33

As for Brenda’s mental disorder, Brenda testified that the doctors

she saw when she was jailed in 2022 prescribed lithium to treat her

bipolar disorder. Brenda explained that she was supposed to seek further

medical care for that condition after she was released. Brenda claims she

33During the trial, Brenda testified she was diagnosed as bipolar. Further, Brenda testified she believes she has schizophrenia, and she based her opinion on feelings she sometimes has that she believes “people are out to get [her] or are “trying to harm [her].” Brenda attributed her symptoms to her historical use of meth. 15 followed up on the medical advice she received when she was released

from jail by seeking treatment at the Legacy Center, a facility that offers

spiritual counseling but that has no licensed professionals or doctors who

could have refilled the prescription Brenda was given to treat her for

bipolar disorder, a disorder she had been diagnosed as having by the

mental health facility serving Montgomery County. Even though Brenda

explained she didn’t seek or obtain treatment from a psychiatrist or

psychologist, she said that during the thirty-day period before trial, she

had been “doing good without medication.” Based on the way she was

coping with her problems with the skills she had developed at the Legacy

Center, Brenda explained she didn’t plan to take any medications unless

“the Court believes that it’s medically necessary . . . for the well-being of

[her] children.” 34

The trial court also heard from Daphne, who probably knew Brenda

better than any of the other witnesses who testified because she had

known Brenda for six years. Daphne testified that she has had Brett in

her home since he was about nine-months old. Daphne explained she has

had Kendall in her home since June 1, 2021. The children were five-years

34No one introduced Brenda’s medical records into evidence, including the records from the Legacy Center. 16 old and two-years old when the case was tried. Daphne explained she met

Brenda when Brenda began dating Kent. Daphne based her opinion

about terminating Brenda’s parental rights on her experience with

Brenda over the last six years. Based on that experience, Daphne

testified she thought Brenda’s rights should be terminated because

Brenda makes bad choices, choices that make it dangerous for children

to live with Brenda in Brenda’s home. According to Daphne, Brett and

Kendall are now “doing great” in her home, and they are doing much

better than when they lived with Brenda.

The evidence before the trial court includes records proving that

Brenda has prior criminal convictions, two of which are for possession of

meth.35 Given the exhibits evidencing Brenda’s convictions, the trial

court could have reasonably determined that Brenda’s convictions

35The trial court admitted the following Judgments of Conviction into evidence: (1) a conviction for Class A misdemeanor theft, for an offense in June 2021; (2) a conviction on a State Jail Felony for possession of a controlled substance—methamphetamine in an amount of less than 1 gram—for an offense in December 2018; (3) a conviction on a State Jail Felony for possession of a controlled substance—methamphetamine in an amount of less than 1 gram—for an offense in February 2016; and (4) a conviction for a Class B misdemeanor DWI, based on a date of offense of February 2014. 17 exposed Brenda to the possibility of an enhanced punishment were

Brenda to be convicted of additional crimes.

To sum it up: Brenda didn’t challenge the trial court’s condition or

endangerment findings. In our review of Brenda’s appeal, we must defer

to the trial court’s endangerment findings because the record contains

evidence supporting the findings. 36

Evidence showing that (1) three witnesses expressed lay opinions

that terminating Brenda’s parental rights is in her children’s best

interest, (2) Brenda used meth for thirteen years, (3) Brenda continued

using meth after the Department filed suit, (4) Brenda didn’t prove she

has the ability to provide her children with a safe, stable and drug-free

home, (5) Brenda failed to comply with her family service plan, (6) Brenda

knowingly placed or allowed her children to remain in conditions or

surrounding that endangered their physical or emotional well-being, and

that (7) Brenda engaged or placed her children with persons who engaged

in conduct that endangered their physical or emotional well-being is

36See In the Interest of H.S., 550 S.W.3d 151, 155 (Tex. 2018); In the Interest of B.A., No. 09-20-00216-CV, 2021 Tex. App. LEXIS 2506, at *25 (Tex. App.—Beaumont Apr. 1, 2021, no pet. h.); In the Interest of R.M.S., No. 09-19-00011-CV, 2019 Tex. App. LEXIS 5390, at *2-3 (Tex. App.— Beaumont June 27, 2019, pet. denied). 18 evidence that supports the trial court’s finding that terminating Brenda’s

parental rights is in Brett’s and Kendall’s best interest. 37 Even if the trial

court believed Brenda’s testimony that she remained drug free in the six-

month period before the trial, the trial court still had the right on this

record to infer that Brenda couldn’t provide her children a safe and stable

home free from the danger that Brenda would return to her historical

patterns of using an illegal drug based on the evidence of her past

conduct, evidence that was undisputed in the trial.

While Brenda focuses on the presumption that keeping a child with

the child’s parent is in the child’s best interest, it is equally presumed

that “the prompt and permanent placement of the child in a safe

environment . . . is in the child’s best interest.”38 Given Brenda’s

historical use of an illegal substance when compared to the length of time

Brenda admits she has gained an awareness that her problem is serious,

the trial court could reasonably infer that even if she is now in temporary

37See In re C.H., 89 S.W.3d at 28 (parent’s past performance as parent is relevant to determination of present and future ability to provide for child); In re B.P., No. 09-21-00038-CV, 2021 Tex. App. LEXIS 5000, at *10 (Tex. App.—Beaumont June 24, 2021, no pet.) (explaining the factfinder may infer from a parent’s past conduct endangering the child that similar conduct will recur if the child were to be returned to the parent). 38Tex. Fam. Code Ann. § 264.307(a).

19 remission, Brenda’s addiction creates a condition that makes terminating

her parental rights in her children’s best interests. Because the evidence

is legally and factually sufficient to support the trial court’s best-interest

findings, we overrule Brenda’s sole issue.

Conclusion

Deferring to the trial court’s role as the sole arbiter of the facts, we

hold the evidence is legally and factually sufficient to support the trial

court’s best-interest findings. The trial court’s Order of Termination is

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on November 21, 2022 Opinion Delivered February 2, 2023

Before Golemon, C.J., Horton and Johnson, JJ.