in the Interest of C.A.L., a Child

Opinion

Reverse and Remand in part; Affirm in part and Opinion Filed December 5, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00763-CV

IN THE INTEREST OF C.A.L., A CHILD

On Appeal from the 304th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-21-00890-W

MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Nowell Opinion by Justice Nowell Father appeals the trial court’s Decree of Termination terminating his parental

rights to his son, C.A.L. Following a brief bench trial, the court found by clear and

convincing evidence that statutory grounds exist for termination, see TEX. FAM.

CODE ANN. § 161.001(b)(1)(D), (E), and termination is in C.A.L.’s best interest, see

id. § 161.001(b)(2). In seven issues, Father argues the evidence is legally and

factually insufficient to support termination under family code subsections

161.001(b)(1)(D) and (E), legally and factually insufficient to support a finding that

termination is in C.A.L.’s best interest, and legally and factually insufficient to

support the appointment of the Department of Family and Protective Services as the managing conservator. We reverse the trial court’s Decree of Termination of

Father’s parental rights and remand the case for further proceedings.

BACKGROUND C.A.L. was born in August 2021, and trial was held in July 2022. Mother was

given a drug test when C.A.L. was born, and the hospital contacted the Department

at that time. Father and Mother took C.A.L. home from the hospital, but C.A.L. was

removed from their care fewer than three weeks later when the Department received

the result from Mother’s drug test showing she was positive for methamphetamines

when C.A.L. was born.

Tiffany Thomas, a caseworker for the Department, testified at trial that each

parent has a history of substance abuse, including heroin, meth, crack, and

marijuana. Although the Department made repeated requests that Father submit to

drug tests, he never did. The Department treated the tests he did not take as

presumptively positive. Father’s family plan, which was admitted at trial, calls for

Father to, among other things, submit to monthly random drug testing. The family

plan indicates Father did not participate in creating and did not sign his family plan.

The document states that Father had not contacted the case worker, but the case

worker “will continue diligent efforts to speak with [Father] and engage him with

–2– his services.” Thomas testified she had no communications with Father; 1 a CASA

supervisor also testified that CASA had not attempted to contact Father.

Thomas’s testimony indicated that, at the beginning of the case, Father made

comments the Department considered inappropriate and exhibited some behavior

that raised concerns about whether he was using drugs; no details were provided at

trial about these comments or behaviors.

The parents have been together for several years. In October 2014, Father

pleaded guilty to “assault causing bodily injury/family violence enhanced,”

adjudication of guilt was deferred, and he was placed on community supervision.

The criminal court judge dismissed the case in September 2020, releasing Father

early from his community supervision. The criminal court’s order states that all

conditions of community supervision were satisfactorily fulfilled.

Thomas testified the Department believed Father was a danger to C.A.L based

on “his behaviors, observed choices in partner, residence, and things of that nature,”

and the parents put C.A.L. in conditions or surroundings that would endanger his

physical or emotional wellbeing. Accordingly, the Department believed termination

was appropriate.

Q. And given their history, behavior, drug usage, documented domestic violence in their relationships, we believe that termination is really the only path forward to ensure [C.A.L.’s] future success; is that correct?

1 Thomas was not the first caseworker assigned to this matter. There was no evidence the prior caseworker had any communication with Father. –3– A. Correct.

Thomas testified the Department’s plan was to have C.A.L. adopted by an

unrelated person because no family member had been identified for a home study.

A CASA supervisor testified C.A.L. is doing well in his current home and is “very

bonded to the foster parents.”

At the end of the trial, the court found Father committed conduct as defined

in chapter 161.001(b)(1)(D) and (E) of the family code and termination was in

C.A.L.’s best interest. The court appointed the Department to serve as the permanent

managing conservator.

LAW & ANALYSIS In his first six issues, Father argues the evidence is legally and factually

insufficient to support termination under family code subsections 161.001(b)(1)(D)

and (E) and insufficient to support a finding that termination is in C.A.L.’s best

interest.

A. Standards of Review Because the fundamental liberty interest of a parent in the care, custody, and

control of her child is one of constitutional dimensions, involuntary parental

termination must be strictly scrutinized. In re C.V. L., 591 S.W.3d 734, 748 (Tex.

App.—Dallas 2019, pet. denied) (citing Troxel v. Granville, 530 U.S. 57, 65–66

(2000); In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014); Holick v. Smith, 685 S.W.2d

18, 20 (Tex. 1985)). In parental termination cases, due process requires the petitioner

–4– to justify termination by clear and convincing evidence. TEX. FAM. CODE. ANN.

§ 161.001(b). “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)).

On appeal, we apply a standard of review that reflects the elevated burden at

trial. In re C.V. L., 591 S.W.3d at 748. “As a matter of logic, a finding that must be

based on clear and convincing evidence cannot be viewed on appeal the same as one

that may be sustained on a mere preponderance.” Id. (quoting In re A.C., 560 S.W.3d

624, 630 (Tex. 2018)). Under both legal and factual sufficiency standards, we (i)

consider all the evidence, (ii) defer to the factfinder’s credibility determinations, and

(iii) determine whether the factfinder could reasonably form a firm belief or

conviction that the grounds for termination were proven. Id. “The distinction

between legal and factual sufficiency lies in the extent to which disputed evidence

contrary to a finding may be considered.” Id. (quoting In re A.C., 560 S.W.3d at

630–31).

When conducting a legal-sufficiency review of an order terminating parental

rights, the reviewing court cannot ignore undisputed evidence contrary to the

finding, but must otherwise assume the factfinder resolved disputed facts in favor of

the finding. Id. We “consider all the evidence, not just that which favors the verdict,”

and we assume the fact-finder resolved disputed facts in favor of its finding if a

–5– reasonable fact-finder could do so. Id. We disregard all evidence that a reasonable

fact-finder could have disbelieved or found to have been incredible. Id. 748-49.

When reviewing the factual sufficiency of the evidence supporting a

termination finding, an appellate court asks whether, in light of the entire record, the

evidence is such that a fact-finder could reasonably form a firm conviction about the

truth of the State’s allegations against the parent. Id. at 749. Further, the appellate

court must consider whether the disputed evidence is such that a reasonable fact-

finder could not have reconciled that disputed evidence in favor of its finding. Id. If

the disputed evidence is so significant that a fact-finder could not reasonably have

formed a firm belief or conviction, then the evidence is factually insufficient. Id.

“And in making this determination, the reviewing court must undertake ‘an exacting

review of the entire record with a healthy regard for the constitutional interests at

stake.’” Id.

B. Family Code Section 161.001(b)(1) Texas Family Code Section 161.001(b)(1) allows for involuntary termination

of parental rights if a court finds by clear and convincing evidence both that a parent

engaged in one or more enumerated predicate grounds for termination and that

termination is in the best interest of the child. TEX. FAM. CODE ANN.

§ 161.001(b)(1)(A)-(U), (b)(2); see also In re M.P., 639 S.W.3d 700, 701–02 (Tex.

2022). However, because an order terminating a parent’s rights under subsection (D)

or (E) can be used as a basis to terminate the parent’s rights to another child under

–6– subsection 161.001(b)(1)(M), terminating rights under (D) or (E) has “significant”

collateral consequences. In re C.V. L., 591 S.W.3d at 749 (citing In re N.G., 577

S.W.3d at 234; TEX. FAM. CODE ANN. § 161.001(b)(1)(M)). Therefore, “due process

requires an appellate court to review and detail its analysis as to termination of

parental rights under section 161.001(b)(1)(D) or (E) of the Family Code when

challenged on appeal.” Id. (quoting In re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019)

(per curiam)).

Under section 161.001(b)(1)(D), parental rights may be terminated if clear

and convincing evidence supports a finding that the parent “knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which endanger

the physical or emotional well-being of the child.” TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D). Section 161.001(b)(1)(E) allows for termination of parental

rights if clear and convincing evidence supports a finding that the parent “engaged

in conduct or knowingly placed the child with persons who engaged in conduct

which endangers the physical or emotional well-being of the child.” Id.

§ 161.001(b)(1)(E).

Subsections (D) and (E) both require proof of endangerment. “Endanger”

means to expose to loss or injury or to jeopardize a child’s emotional or physical

health, but it is not necessary that the conduct be directed at the child or that the child

actually suffer an injury. In re C.V. L., 591 S.W.3d at 750. Specific danger to the

child’s well-being may be inferred from the parent’s misconduct alone. Id. A

–7– parent’s conduct that subjects a child to a life of uncertainty and instability endangers

the child’s physical and emotional well-being. Id. The specific danger to the child’s

well-being may be inferred from parental misconduct standing alone. Id.

“[A] parent’s use of narcotics and its effect on his or her ability to parent may

qualify as an endangering course of conduct.” In re J.O.A., 283 S.W.3d 336, 345

(Tex. 2009). Evidence of a parent’s drug use, or evidence that another parent allowed

a child to be around a parent or other persons using drugs, can support the conclusion

that the child’s surroundings endanger her physical or emotional well-being under

subsection (D) and can qualify as a voluntary, deliberate, and conscious course of

conduct endangering the child’s well-being under subsection (E). In re C.V. L., 591

S.W.3d at 751. Continued illegal drug use after a child’s removal is conduct that

jeopardizes parental rights and may be considered as establishing an endangering

course of conduct under subsection (E). Id. “And where the record contains evidence

that a parent engages in drug use during the pendency of a termination suit, when he

knows he is at risk of losing his children,” such evidence has been found legally

sufficient to support a finding of endangerment under subsection (E). Id.

C. Sufficiency of the Evidence under Subsections § 161.001(b)(1)(D) and (E) The record in this case does not support a finding of endangerment by clear

and convincing evidence. Mother tested positive for methamphetamines when

C.A.L. was born. The record does not show that C.A.L. tested positive, Father tested

positive, or that Father knew Mother was using drugs. C.A.L. then lived with his –8– parents for fewer than three weeks, and the record is silent about any occurrences

during that time. From that point forward, C.A.L. lived with a foster family. The

record shows the Department had minimal, if any, contact with Father during the

pendency of this case, CASA did not attempt to contact Father, Father was not tested

for drugs, and the Department treats missed drug tests as presumptively positive.

However, the record does not show Father was aware he was supposed to appear for

drug tests. There is no evidence Father was using drugs or that any drug use impacted

his ability to parent, particularly in light of the fact that C.A.L. was removed when

he was fewer than three weeks old.

We conclude the evidence is legally and factually insufficient to show by clear

and convincing evidence that Father knowingly placed or knowingly allowed C.A.L.

to remain in conditions or surroundings which endanger his physical or emotional

well-being, see TEX. FAM. CODE ANN. § 161.001(b)(1)(D), or “engaged in conduct

or knowingly placed the child with persons who engaged in conduct which

endangers the physical or emotional well-being of the child,” see id.

§ 161.001(b)(1)(E). We sustain Father’s first, second, third, and fourth issues. In

light of our resolution of Father’s first four issues, we need not consider Father’s

fifth and sixth issues in which he argues the evidence is legally and factually

sufficient to show by clear and convincing evidence that termination of the parent–

child relationship was in C.A.L’s best interest. See TEX. R. APP. P. 47.1.

–9– D. Conservatorship In his seventh issue, Father asserts the evidence is legally and factually

insufficient to support the appointment of the Department as the managing

conservator. Unlike the clear and convincing standard applicable in a termination

proceeding, the appointment of a non-parent as managing conservator need only be

proven by a preponderance of the evidence. In re D.P., No. 05-22-00147-CV, 2022

WL 2816601, at *2 (Tex. App.—Dallas July 19, 2022, no pet.) (mem. op.); see also

In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). “These differing proof standards, in

turn, affect the method of appellate review, which is more stringent for termination

decisions than for those regarding conservatorship.” In re J.A.J., 243 S.W.3d at 616.

Further, “[b]ecause different standards apply, evidentiary review that results in

reversal of a termination order may not yield the same result for a conservatorship

appointment.” Id.

We review a trial court’s order regarding conservatorship of a child for abuse

of discretion. In re D.P., 2022 WL 2816601, at *2 (citing Interest of J.J.R.S., 627

S.W.3d 211, 218 (Tex. 2021)). “The best interest of the child shall always be the

primary consideration of the court in determining the issues of conservatorship and

possession of and access to the child.” TEX. FAM. CODE § 153.002. “A trial court’s

determination of what is in the child’s best interest, specifically the establishment of

terms and conditions of conservatorship, is a discretionary function.” Interest of

J.J.R.S., 627 S.W.3d at 218.

–10– Section 153.131 of the family code states:

(a) Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. (b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.

TEX. FAM. CODE ANN. § 153.131. Pursuant to section 153.004(b), the court may not

appoint joint managing conservators if credible evidence is presented of a history of

physical abuse by one parent directed against the other parent. See id. § 153.004(b).

Further, “[i]t is a rebuttable presumption that the appointment of a parent as the sole

managing conservator of a child or as the conservator who has the exclusive right to

determine the primary residence of a child is not in the best interest of the child if

credible evidence is presented of a history . . . of past or present . . . physical or

sexual abuse by that parent directed against the other parent, a spouse, or a child.”

Id.

The record shows Father was indicted for assaulting Mother, a member of his

family and household with whom he had a dating relationship, Father pleaded guilty

to that offense, and he was placed on community supervision. Thus, credible

evidence shows Father has a history of physical abuse directed against Mother, and

–11– we conclude, then, that the trial court did not abuse its discretion by appointing the

Department as C.A.L.’s managing conservator. We overrule Father’s seventh issue.

CONCLUSION Generally, rendition of judgment in favor of Father would be required where,

as here, there is legally insufficient evidence. In re J.S., No. 05-18-01328-CV, 2019

WL 1417142, at *6 (Tex. App.—Dallas Mar. 29, 2019, no pet.) (mem. op.) (citing

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). However, appellate courts have broad

discretion to remand in the interest of justice. Id. (citing In re H.H., No. 05-15-

01322-CV, 2016 WL 556131, at *4 (Tex. App.—Dallas Feb. 12, 2016, no pet.)

(mem. op.); see also TEX. R. APP. P. 43.3(b). In his Prayer, Father requests the case

be remanded for a new trial. We conclude remand of this case is appropriate.

We reverse the trial court’s Decree of Termination terminating Father’s

parental rights and remand the case for further proceedings. In all other respects, the

Decree of Termination is affirmed.

220763f.p05 /Erin A. Nowell// ERIN A. NOWELL JUSTICE

–12– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF C.A.L., A On Appeal from the 304th Judicial CHILD District Court, Dallas County, Texas Trial Court Cause No. JC-21-00890- No. 05-22-00763-CV W. Opinion delivered by Justice Nowell. Justices Partida-Kipness and Pedersen, III participating.

In accordance with this Court’s opinion of this date,

We REVERSE the trial court’s Decree of Termination terminating Father’s parental rights and REMAND the case for further proceedings as to Father. In all other respects, the Decree of Termination is AFFIRMED.

Judgment entered this 5th day of December 2022.

–13–