In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-21-00033-CV
IN THE INTEREST OF B.R.M.L., T.T.A.L., AND L.J.K.H., CHILDREN
On Appeal from the 316th District Court Hutchinson County, Texas Trial Court No. 44,128, Honorable James M. Mosley, Presiding
July 8, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.
Amy appeals from a judgment terminating her parental rights to her three children,
B.L., T.L., and L.H.1 Abe also appeals from that judgment which terminates his parental
rights to his child, L.H.
1 To protect the privacy of the parties, we will refer to the appellant mother as “Amy,” the appellant father as “Abe,” and to the children by their abbreviated initials “B.L.,” “T.L.,” and “L.H.” See TEX. FAM. CODE. ANN. § 109.002(d) (West Supp. 2020); TEX. R. APP. P. 9.8(b). The parental rights of “Andy,” the father of B.L. and T.L., were also terminated in this proceeding but he did not appeal. Background
The children the subject of this suit are seven-year-old B.L., six-year-old T.L., and
two-year-old L.H. Amy is the mother of these children. The father of B.L. and T.L. is
Andy, and Abe is the father of L.H. The trial court conducted a final hearing in this case
on February 9, 2021.
The Texas Department of Family and Protective Services presented evidence that
the Department became involved with this family in November of 2019 after receiving a
report alleging that Amy was neglectful in her supervision of B.L., T.L., and L.H. The
report alleged that “an unrelated home member was seen with a needle in his arm,” and
B.L. had been dropped off by the school bus and no one was at home to receive her.
There were also concerns of the children being unsupervised, domestic violence between
Amy and Abe, and drug use in the home. Abe had been recently incarcerated in the
Potter County Detention Center when the Department began its investigation. During the
investigation, T.L. made an outcry of domestic violence between Amy and Abe, a
methamphetamine pipe was found in the home, and B.L. and T.L. tested positive for
methamphetamine. Amy admitted to the investigator that she recently used marijuana
and then denied the admission. Amy declined to submit to drug testing at that time and
refused to cooperate with the Department.
In January of 2020, the Department removed all three children from Amy’s care
and filed its petition for protection, conservatorship, and termination of parental rights of
Amy and Abe. Following an adversary hearing, the Department was appointed temporary
managing conservator of all three children.
2 The Department developed separate family service plans for Amy and Abe. The
service plans set out several tasks and services for Amy and Abe to complete before
reunification with their children could occur. These tasks and services included the
following: complete a psychological evaluation and follow recommendations; maintain
regular contact with the caseworker; abstain from the use of illegal drugs; submit to
random drug screens; locate and maintain stable housing that is free from drugs and
violence; locate and maintain stable employment; complete a psychosocial assessment
and follow recommendations; attend individual counseling; take parenting classes; attend
weekly batterer intervention classes (BIPP); participate in a substance abuse assessment
at Outreach, Screening, Assessment, and Referral (OSAR) and follow recommendations;
complete a mental health assessment at Texas Panhandle Centers; and attend visitation.
Amy’s plan also included a requirement that she participate in and complete the Women
Against Violence (WAV) program.
Abe had been placed on deferred adjudication community supervision for
possession of methamphetamine in July of 2016. Abe was in jail for allegedly violating
the terms of his community supervision when the children were removed. Abe was
released from jail in mid-January of 2020. In July, he was arrested for possession of a
controlled substance. Abe remained in jail from mid-July until September. According to
Abe, the possession charges were dropped. In October, he was arrested for evading
arrest and outstanding warrants.
Abe did not maintain contact with the caseworker and “dropped off the radar” in
June of 2020. The only service Abe completed was the mental health assessment. Abe
3 testified that he completed parenting classes but that he had not given his certificate of
completion to the caseworker. He admitted that he has not provided random drug screens
as requested by the Department. After his release from jail in September, Abe did not
contact his caseworker to continue to work his services. Abe has not visited with L.H.
since July of 2020, and he did not provide any financial support of L.H. while L.H. has
been in care.
At the time of the final hearing, Abe was employed at West Texas Premiere
Framing and living in Amarillo with his boss. Abe said he would be getting an apartment
in the next week or two and that he would be able to take care of L.H.
Amy maintained contact with the caseworker for the first five to six months of the
case and she actively participated in her service plan during that time. Amy satisfied the
plan’s requirement that she submit to a psychological evaluation, a psychosocial
evaluation, an OSAR intake and assessment, and a WAV assessment. The Department
added a requirement that Amy attend Alcoholics Anonymous (AA) after the OSAR
assessment suggested that Amy was not truthful concerning her use of alcohol. The
Department did not receive any documentation that Amy was employed, completed the
TPC intake, or attended or completed parenting classes, individual counseling, or AA.
Amy submitted to an initial hair follicle drug test in February of 2020, eleven days after
she was requested to test. That test was negative. Amy failed to submit to drug testing
on twelve occasions from March until the final hearing in February of 2021. Under the
service plan, a refusal to submit to a test constitutes a positive drug test.
4 In October, Amy decided that she was not going to work with the Department any
longer. She stopped returning phone calls to the caseworker and would not respond to
requests for in-person visits to her home. It was also in October that Amy was arrested
for evading arrest and unlawfully carrying a weapon.
In November, a permanency review hearing was held and Amy’s visits with the
children were suspended. Prior to November, Amy’s visits with the children were
sporadic. The caseworker testified that out of four or more scheduled visits per month,
Amy would attend only one or two, and that Amy was not “engaging appropriately” in the
visits. According to T.L., during visitation, Amy whispers in his ear that “he’s a brat.” The
counselor for the children testified that T.L. has low self-esteem, struggles educationally,
and “will tell you that he’s a bad boy, [because] he’s heard that repeatedly.” T.L. and B.L.
told the counselor that Amy uses bad words around them and that she is mean.
Moreover, the visits with Amy affect their behavior. After a visit with Amy, the children
become difficult to redirect, have difficulty following directions, and become “very hyper
and dysregulated emotionally.” B.L. and T.L. are adamant about not wanting to have
visitation with Amy. The counselor recommended that further visitation with Amy is
detrimental as to B.L. and T.L. and visitation should be ended for all three children if Amy
was not working toward reunification.
Amy testified that she completed an OSAR assessment, attended AA, obtained a
psychological evaluation, participated in individual counseling, completed an intake at
Texas Panhandle Center, completed parenting classes, and started her BIPP classes.
She received a certificate of completion for individual therapy and counseling. Amy
5 reported being self-employed at A.R. Caring Hands. Although Amy disputed much of the
evidence offered by the Department concerning her completion of services, she did not
introduce any documentation to support her testimony concerning the services she
completed. She acknowledged that she has made bad choices in men and that she does
not always pick “great men.” She requested that the children be returned to her.
The counselor for the children testified to the emotional condition of B.L. and T.L.
when she first began seeing them and how they progressed since removal from their
mother’s care. The counselor testified that B.L. and T.L. are “much calmer, happier.
Respond well to adult instructions. They love school.” The opinions of B.L. and T.L. as
to visitation have not changed since November. B.L. and T.L. are bonded with their foster
parents and they are concerned that they may have to leave the foster home. T.L. was
very upset and worried about returning to the lifestyle that he lived when he was with his
mother. T.L. has been aggressive and having behavioral issues at school due to his fear
of being moved from the foster home. The counselor opined that moving the children
from their placement would exacerbate that aggression. The counselor expressed
concern that Amy and Abe have failed to complete their plans of service and believed it
would be dangerous to send the children back to their care because they have not
demonstrated that they have learned to provide a safe environment for the children.
The children are currently placed together with a foster family in Lubbock. The
children are thriving in this placement and are bonded with their foster family. There is a
home study pending on Amy’s aunt and uncle in Oklahoma. If that home study is
approved, the plan is to place the children in Oklahoma. If the home study is denied, the
6 foster placement is interested in becoming a permanent home for all three children. L.H.
is almost two years old and he is meeting all of his developmental milestones. B.L. and
T.L. desire their current home with the foster family to be their forever home.
The trial court terminated Amy’s parental rights on the grounds set forth in Texas
Family Code section 161.001(b)(1)(D), (E), (N), (O), and (P). See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D), (E), (N), (O), and (P). (West Supp. 2020).2 The trial court further
found termination of Amy’s parental rights was in the best interest of B.L., T.L., and L.H.
See § 161.001(b)(2). The trial court terminated Abe’s parental rights on the grounds set
forth in section 161.001(b)(1)(B), (D), (E), (N), (O), and (P). See § 161.001(b)(1)(B), (D),
(E), (N), (O), and (P). The trial court also found that termination of Abe’s parental rights
was in the best interest of L.H. See § 161.001(b)(2). The trial court appointed the
Department as the managing conservator of all three children.
Applicable Law
A parent’s right to the “companionship, care, custody, and management” of his or
her child is a constitutional interest “far more precious than any property right.” Santosky
v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of the
parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural
parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to
2 Further references to provisions of the Texas Family Code will be by reference to “section __” or “§ __.” 7 accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)
(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may
forfeit his or her parental rights by his or her acts or omissions, the primary focus of a
termination suit is protection of the child’s best interests. See id.
In a case to terminate parental rights under section 161.001 of the Family Code,
the petitioner must establish, by clear and convincing evidence, that (1) the parent
committed one or more of the enumerated acts or omissions justifying termination, and
(2) termination is in the best interest of the child. § 161.001(b). Clear and convincing
evidence is “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 2019); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both elements
must be established and termination may not be based solely on the best interest of the
child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet.
denied). “Only one predicate finding under section 161.001[(b)](1) is necessary to support
a judgment of termination when there is also a finding that termination is in the child’s best
interest.” In re A.V., 113 S.W.3d at 362. We will affirm the termination order if the
evidence is both legally and factually sufficient to support any alleged statutory ground
the trial court relied upon in terminating the parental rights if the evidence also establishes
that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d at 894-95.
The clear and convincing evidence standard does not mean the evidence must
negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,
8 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall
that the trier of fact has the authority to weigh the evidence, draw reasonable inferences
therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the
right to resolve credibility issues and conflicts within the evidence and may freely choose
to believe all, part, or none of the testimony espoused by any particular witness. Id.
Where conflicting evidence is present, the factfinder’s determination on such matters is
generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso
1997, no writ).
The appellate court cannot weigh witness credibility issues that depend on
demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,
the appellate court must defer to the factfinder’s determinations, as long as those
determinations are not themselves unreasonable. Id.
Standard of Review
When reviewing the legal sufficiency of the evidence in a termination case, the
appellate court should look at all the evidence in the light most favorable to the trial court’s
finding “to determine whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true.” In re J.F.C., 96 S.W.3d at 266. To give appropriate
deference to the factfinder’s conclusions, we must assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We
disregard all evidence that a reasonable factfinder could have disbelieved or found to
have been not credible, but we do not disregard undisputed facts. Id. Even evidence that
9 does more than raise surmise or suspicion is not sufficient unless that evidence is capable
of producing a firm belief or conviction that the allegation is true. In re K.M.L., 443 S.W.3d
101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we determine that
no reasonable factfinder could have formed a firm belief or conviction that the matter that
must be proven was true, then the evidence is legally insufficient and we must reverse.
Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, we must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d
at 266. We must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.
Id. We must also consider whether disputed evidence is such that a reasonable factfinder
could not have resolved the 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. Id.
Analysis
Best Interest
Amy and Abe filed separate briefs. They do not contest the statutory basis for
termination under section 161.001(b)(1). In their sole issue, Amy and Abe each challenge
the factual and legal sufficiency of the evidence to support the best interest finding made
under section 161.001(b)(2).
10 A determination of best interest necessitates a focus on the child, not the parent.
In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts
examine the entire record to decide what is in the best interest of the child. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child’s
best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006).
In assessing whether termination is in a child’s best interest, the courts are guided
by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976). These 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 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 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 proper, and (9) any excuse
for the acts or omissions of the parent. Id. “[T]he State need not prove all of the factors
as a condition precedent to parental termination, ‘particularly if the evidence were
undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,
95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory
grounds for termination may also constitute evidence illustrating that termination is in the
child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis may
consider circumstantial evidence, subjective factors, and the totality of the evidence as 11 well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,
no pet.). We must also bear in mind that 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.).
When the Department became involved with the family in the fall of 2019, B.L. and
T.L. tested positive for methamphetamine and drug paraphernalia was found in the home.
Amy admitted to marijuana use and submitted to one drug test in February of 2020. She
was not compliant with the random drug tests required under the service plan and refused
or failed to appear for twelve drug tests requested by the Department. Abe had a history
of possession of methamphetamine and was arrested for a drug possession charge after
the children were removed. Abe likewise failed to comply with the Department’s request
for drug testing throughout the case. A parent’s refusal to submit to drug testing may be
considered as evidence that he or she is continuing to abuse drugs. In re T.R.L., No. 10-
14-00290-CV, 2015 Tex. App. LEXIS 2178, at *14 (Tex. App.—Waco Mar. 5, 2015, no
pet.) (mem. op.) (“A factfinder may reasonably infer from a parent’s refusal to take a drug
test that the parent was using drugs.”); In re C.R., 263 S.W.3d 368, 374 (Tex. App.—
Dallas 2008, no pet.) (trial court could reasonably infer parent avoided taking drug tests
because she was using drugs). A parent’s drug use supports a finding that termination
of parental rights is in the best interest of the child. In re D.M.M., No. 14-16-00664-CV,
2017 Tex. App. LEXIS 47, at *13 (Tex. App.—Houston [14th Dist.] Jan. 5, 2017, pet.
denied) (mem. op.).
12 The Department also presented evidence that Amy and Abe did not exercise their
periods of possession with the children. Abe acknowledged that he had not visited L.H.
in more than six months. Amy’s visitation with the children was sporadic. In November,
the trial court suspended Amy’s visits after the children’s counselor testified that Amy’s
visits were detrimental to B.L. and T.L. A parent’s failure to visit a child during the six
months preceding trial indicates the parent would not meet the child’s emotional and
physical needs in the future. In re A.S., No. 02-16-00284-CV, 2017 Tex. App. LEXIS 715,
at *18 (Tex. App.—Fort Worth Jan. 26, 2017, pet. denied) (mem. op.).
Although the evidence showed that Amy completed some of the service plan’s
requirements, Amy did not comply with significant portions of her plan, including random
drug testing, individual counseling, parenting classes, and AA meeting attendance. The
only service that Abe completed was a mental health evaluation. Abe did not stay in
contact with the Department after July of 2020 and admitted that he failed to participate
in the services offered. Moreover, Abe was arrested several times during the pendency
of the case, and he did not provide financially for L.H. The factfinder can infer from a
parent’s failure to take the initiative to utilize the available programs that the parent did
not have the ability to motivate herself in the future. In re S.P., 509 S.W.3d 552, 558 (Tex.
App.—El Paso 2016, no pet.). A trial court is permitted to consider a parent’s drug use,
inability to provide a stable home, and failure to comply with a family plan of service in its
best interest determination. In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth
2006, no pet.). This evidence weighs heavily in favor of the best interest finding as to
both Amy and Abe.
13 Stability and permanence are paramount in the upbringing of children. In re J.D.,
436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may
compare the parent’s and the Department’s plans for the child and determine whether the
plans and expectations of each party are realistic or weak and ill-defined. Id. at 119-20.
Here, Amy asked the trial court to return the children to her care or, alternatively, to place
the children with her aunt and uncle. Amy did not articulate any clear plans for the
children. Abe did not have a place of his own or any plan as to how he would care for
L.H., a two-year-old. In contrast, the Department’s plan for the children was permanence.
The trial court heard testimony from the caseworker and the children’s counselor that the
children were bonded to their placement family. The Department is awaiting the outcome
of a home study on a maternal aunt and uncle who live in Oklahoma. If the home study
is not favorable, the foster placement desires to be a long-term placement for the children.
B.L. and T.L. are extremely bonded to the foster parents and refer to them as “mom and
dad.” Further, B.L. and T.L. remain opposed to visiting with Amy and they fear being
returned to her. LH. was too young at the time of trial to express his desires. The trial
court heard evidence that the children were thriving and “doing fantastic” in the foster
placement. The Department’s plan would provide permanence and stability for the
children and weighs heavily in favor of the trial court’s conclusion that termination of Amy
and Abe’s parental rights is in the best interest of the children.
We conclude the evidence is legally and factually sufficient to establish a firm
conviction in the mind of the trial court that termination of Amy’s parental rights is in the
best interest of B.L., T.L., and L.H. Amy’s sole issue is overruled. We also conclude the
evidence is legally and factually sufficient to establish a firm conviction in the mind of the 14 trial court that termination of Abe’s parental rights is in the best interest of L.H.
Accordingly, we overrule Abe’s sole issue.
Conclusion
The judgment of the trial court terminating Amy and Abe’s parental rights is
affirmed.
Judy C. Parker Justice