in the Interest of E.R., P.R., Jr., S.R., and S.R., Children

• Court: Court of Appeals of Texas
• Decided: February 2, 2021
• Docket: 07-20-00276-CV
• Status: Published

Opinion

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

No. 07-20-00276-CV ________________________

IN THE INTEREST OF E.R., P.R., JR., S.R., AND S.R., CHILDREN

On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2019-538,086; Honorable Kelly Tesch, Presiding

February 2, 2021

MEMORANDUM OPINION Before PIRTLE, PARKER, and DOSS, JJ.

Appellant, P.R., appeals from the trial court’s order terminating his parental rights

to his four children, E.R., P.R., Jr., S.R., and S.R. 1 In pursuit of his appeal, P.R. presents

five issues challenging the trial court’s order. By his first issue, he maintains the evidence

is legally insufficient to show he knowingly placed or knowingly allowed his children to

remain in conditions or surroundings which endangered their physical or emotion well-

To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM. 1

CODE ANN. § 109.002(d) (West Supp. 2020). See also TEX. R. APP. P. 9.8(b). being. By issue two, he contends he did not engage in conduct or knowingly place his

children with persons who engaged in conduct which endangered their physical or

emotional well-being. By his third issue, he challenges the trial court’s finding that he

constructively abandoned his children or demonstrated an inability to provide them with

a safe environment. By his fourth issue, he contests the evidence supporting a finding

that he failed to comply with the provisions of a court order that specifically established

the actions necessary for him to obtain the return of his children, and by his fifth and final

issue, he contests the trial court’s finding that termination is in his children’s best

interests. 2 We affirm.

BACKGROUND

Appellee, the Texas Department of Family and Protective Services, received a

report of neglectful supervision of the four children in December 2019. According to the

record, the family had been residing with the children’s paternal grandfather. When the

grandfather passed away, the family was faced with eviction due to non-payment of rent.

Electricity to the home had been disconnected due to non-payment. In addition, the

refrigerator, stove, beds, and other furniture in the home had been sold and there was no

food in the house. The children’s mother also reported that there was no heat in the home

due to the lack of electricity.

In addition to the children’s living environment, the Department was also

concerned with drug use by both parents, specifically an allegation that the mother used

drugs in the children’s presence. After the children were picked up by the Department,

2 The mother’s parental rights were also terminated; however, she did not appeal.

2 all four tested positive for cocaine. According to a Department investigator, the parents

confirmed the allegations of their living conditions but would not confirm reports of drug

use. P.R. offered to take a drug screen but postponed his drug screen due to scheduling

issues with his employment. Thereafter, he did not show for at least four scheduled drug

screens. At first, the children’s mother did not want to submit for drug screening.

Eventually she did and she tested positive for crack cocaine. She told the investigator

she had used crack cocaine to cope with the death of her father. She also admitted to

using marihuana.

The Department investigator interviewed two of the four children. They indicated

that P.R. used drugs but not around them. They also reported that because the home

did not have a stove or electricity, they ate mostly take-out food.

The parents provided the Department with several names as potential placements

for the children. After home studies were conducted, all potential placements were ruled

out as viable placements. After the Department removed the children from the parents,

the youngest child was placed in a foster home and the three older children were placed

at Boys Ranch.

At one point during the proceedings, P.R. was employed at a fast-food chain.

Despite this employment, the caseworker remained concerned that the parents were

unable to pay their bills. With the children in foster care, the parents began living in

motels. They both committed theft to help pay for their accommodations and both were

eventually arrested. The record does not provide details on the disposition of those

arrests.

3 The final hearing on the Department’s petition for termination was held virtually via

Zoom. Neither parent appeared for the hearing. The caseworker advised the trial court

that she had provided the parents with a link for the Zoom hearing. The trial court noted

that P.R. was represented by counsel and proceeded with the hearing. 3 The sole witness

for the Department was the assigned caseworker.

According to the caseworker, at the outset, the Department’s primary goal was

family reunification by addressing the parents’ drug use and establishing a safe and stable

home environment for the children. During her testimony, numerous exhibits were

admitted into evidence, including family service plans and an order for actions necessary

for the parents to obtain the return of their children. However, her testimony established

that the parents failed to follow most of the requirements of the plans and the order, and

eventually, the Department’s goal changed from family reunification to termination and

unrelated adoption.

Through her testimony, the caseworker confirmed that the Department’s concern

for the children was the parents’ drug use. P.R. used drugs and he was aware that the

children’s mother had used drugs in the children’s presence. According to the

caseworker, the family was facing eviction with no plan as to where to live or how to

provide a stable home for the children.

The caseworker testified that the youngest child was in the care of a foster parent

who was willing to adopt her. The three older children were at Boys Ranch. All the

3 P.R.’s counsel advised the trial court that he had not had any contact from his client since a hearing held a few days earlier.

4 children were doing well in their placements. The goal for the three older children was

also unrelated adoption; however, they could remain at Boys Ranch long-term if needed.

The Department’s goal included finding the children a stable, drug-free environment that

would meet all their basic needs. The caseworker answered affirmatively when asked if

the children’s best interests would be served by terminating the rights of the parents.

At the conclusion of the hearing, the trial court found that P.R.: (1) knowingly

placed or knowingly allowed his children to remain in conditions which endangered their

physical or emotional well-being; (2) engaged in conduct or knowingly placed the children

with persons who engaged in conduct which endangered their physical or emotional well-

being; (3) constructively abandoned the children who had been placed in the

conservatorship of the Department for not less than six months; and (4) failed to comply

with the provisions of a court order that specifically established the actions necessary to

obtain the return of his children. The trial court also found that termination of P.R.’s

parental rights was in his children’s best interests. See TEX. FAM. CODE ANN. §

161.001(b)(1) (D), (E), (N), and (O), (b)(2) (West Supp. 2020). P.R. challenges only the

legal sufficiency of the trial court’s findings.

APPLICABLE LAW

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

parent and a child if the Department establishes one or more acts or omissions

enumerated under section 161.001(b)(1) of the Code and that termination of that

relationship is in the best interest of the child. See § 161.001(b)(1), (2); Holley v. Adams,

544 S.W.2d 367, 370 (Tex. 1976). The burden of proof is by clear and convincing

evidence. § 161.206(a) (West Supp. 2020). “‘Clear and convincing evidence’ means the

5 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).

STANDARD OF REVIEW

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

magnitude. See Santosky v. Kramer, 455 U.S. 745, 758-59, 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 are not sacrificed merely to

preserve those 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. See 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).

In a legal sufficiency challenge, we credit evidence that supports the verdict if

reasonable jurors could have done so and disregard contrary evidence unless reasonable

jurors could not have done so. In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014).

However, the reviewing court should not disregard undisputed facts that do not support

the verdict to determine whether there is clear and convincing evidence. Id. at 113. In

cases requiring clear and convincing evidence, even evidence that does more than raise

surmise and suspicion will not suffice unless that evidence is capable of producing a firm

belief or conviction that the allegation is true. Id. If, after conducting a legal sufficiency

6 review, a court determines that no reasonable fact finder could form a firm belief or

conviction that the matter that must be proven is true, then the evidence is legally

insufficient. Id. (citing In re J.F.C., 96 S.W.3d at 266).

SECTION 161.001(b)(1)(D)

The parent-child relationship may be terminated under subsection (D) if the court

finds by clear and convincing evidence that a parent has knowingly placed or knowingly

allowed a child to remain in conditions or surroundings which endanger the child’s

physical or emotional well-being. Subsection (D) concerns the child’s living environment

rather than the conduct of the parent, although a parent’s conduct is certainly relevant to

the child’s environment. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,

no pet.). The relevant time frame under subsection (D) is prior to a child’s removal. In re

O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied). Additionally, a

parent’s continued drug use subjects a child to a life of uncertainty and instability which

endangers that child’s physical or emotional well-being. In re D.B., No. 07-20-00186-CV,

2020 Tex. App. LEXIS 9711, at *12-13 (Tex. App.—Amarillo Dec. 10, 2020, no pet.)

(mem. op.) (citing In re A.B., 125 S.W.3d 769, 777 (Tex. App.—Texarkana 2003, pet.

denied)).

Appellant’s first issue challenges the trial court’s finding that he knowingly placed

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

endangered their physical or emotional well-being. Through the testimony of the

caseworker, the Department established that the children were living in a home where

the electricity had been terminated due to non-payment. The home was also without

adequate furnishings or heat. Additionally, after the children’s paternal grandfather

7 passed away, the family was facing eviction due to non-payment of rent. The mother’s

continued use of drugs in the children’s presence, as well as the father’s continued drug

use, may be considered as relevant to the children’s living environment. Based on these

facts, we conclude the Department established that termination of P.R.’s parental rights

under subsection 161.001(b)(1)(D) is supported by clear and convincing evidence. Issue

one is overruled.

Ordinarily, only one statutory ground is required to support termination. See In re

S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.). However, in light of

In re N.G., 577 S.W.3d 230, 235-37 (Tex. 2019) (per curiam), due process necessitates

that we also review the trial court’s finding that termination was supported under section

161.001(b)(1)(E).

In re N.G. instructs appellate courts to review both subsections (D) and (E) when

raised on appeal because of the potential consequences to a parent’s rights in a future

proceeding concerning a different child. Id. There, the Supreme Court held that because

section 161.001(b)(1)(M) provides for termination of parental rights if there is clear and

convincing evidence that the parent has had his or her parental rights terminated with

respect to another child based on a finding under subsection (D) or (E), an appellate court

denies an appellant a “meaningful appeal and eliminates the parent’s only chance for

review of a finding that will be binding as to parental rights to other children” if that court

does not review termination based on either those subsections. Id. An appellate court is

required to provide details of its analysis under those subsections. In re L.G., 596 S.W.3d

778, 781 (Tex. 2020) (concluding the court of appeals erred in failing to detail its analysis

8 of the challenged findings under subsections (D) and (E) after affirming termination on

another subsection) (citing In re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019)).

SECTION 161.001(b)(1)(E)

By issue two, P.R. challenges the finding that he engaged in conduct or knowingly

placed the children with persons who engaged in conduct which endangered their

physical or emotional well-being. Under subsection (E), the relevant inquiry is whether

there is sufficient evidence that the endangerment was the direct result of the parent’s

conduct, including acts, omissions, and failures to act. In re J.T.G., 121 S.W.3d at 125;

Doyle v. Tex. Dep’t of Protective & Regulatory Servs., 16 S.W.3d 390, 395 (Tex. App.—

El Paso 2000, pet. denied). Additionally, subsection (E) requires a conscious course of

conduct rather than a single act or omission. In re D.T., 34 S.W.3d 625, 634 (Tex. App.—

Fort Worth 2000, pet. denied).

Endanger means to expose to loss or injury; to jeopardize. In re M.C., 917 S.W.2d

268, 269 (Tex. 1996) (citing Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533

(Tex. 1987)). It is more than a threat of metaphysical injury or the possible ill effects of a

less-than-ideal family environment. See In re M.C., 917 S.W.2d at 269. See also In re

T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.).

Drug use and its effect on a parent’s life and ability to parent may establish an

endangering course of conduct. In re R.W., 120 S.W.3d 732, 738-39 (Tex. App.—Fort

Worth 2004, pet. denied). However, evidence of drug use on its own is not sufficient to

show endangerment unless it is causally connected to conduct endangering a child. In

re L.C.L., 599 S.W.3d 79, 84 (Tex. App.—Houston [14th Dist.] 2020, pet. filed).

9 P.R. admitted to using drugs and the evidence showed that he was aware that the

children’s mother used drugs in the children’s presence. Throughout the proceedings,

the parents remained a couple and resided together. Their drug use was a continuing

course of conduct. P.R. failed to show for at least four drug tests. See In re W.E.C., 110

S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (noting that a fact finder may infer

from a parent’s repeated failure to show for drug screens that the parent is avoiding

testing due to drug use). See also In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (finding

that a parent’s drug use and its effect on his or her ability to parent may qualify as an

endangering course of conduct). The evidence showed that all four children tested

positive for crack cocaine—a fact that endangered their physical well-being. P.R. failed

to act to protect his children from the mother’s drug use in their presence. Issue two is

overruled.

Having found clear and convincing evidence to support termination under

subsections (D) and (E), as required by In re N.G., we need not address termination under

subsections (N) and (O). P.R.’s third and fourth issues are pretermitted.

BEST INTEREST FINDING

By his fifth issue, P.R. maintains the Department failed to satisfy its burden under

section 161.001(b)(2) to show that termination of his parental rights was in his children’s

best interests. See In re K.M.L., 443 S.W.3d at 116. Only if no reasonable fact finder

could have formed a firm belief or conviction that termination of his parental rights was in

the children’s best interest can we conclude the evidence is legally insufficient. Id. (citing

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

10 There is a strong presumption that the best interest of a child will be served by

preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

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 2019). Section 263.307(b) of the

Family Code provides a non-exhaustive list of factors to consider in determining whether

the parent is willing and able to provide the child with a safe environment. One of those

factors is providing the child with a safe physical home environment. § 263.307(b)(12)(D).

Additionally, the Supreme Court has set out other factors to consider when

determining the best interest of a child. See Holley, 544 S.W.2d at 371-72. 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 to promote the best interest of the child; (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; and (9) any excuse for the acts or omissions

of the parent. Id. The absence of evidence of one or more of these factors does not

preclude a fact finder from reasonably forming a strong conviction or belief that

termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27.

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 id. at

28. See also In re E.C.R., 402 S.W.3d 239, 249-50 (Tex. 2013). The best interest

analysis may consider circumstantial evidence, subjective factors, and the totality of the

11 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.).

Although the evidence at the final hearing did not specifically address each Holley

factor, the evidence presented by the Department established the children were all doing

well in their placements. The foster placements were providing the children with stability

and a drug-free environment. All their basic needs were being met. The youngest child’s

foster parent desired to adopt her and the Department was hopeful the three older

children could also be adopted; however, in the interim they had a stable home at Boys

Ranch as long as needed.

The caseworker further testified that P.R. failed to show for visits with his children

on more than twenty occasions. Additionally, to her knowledge, P.R. did not provide any

letters or gifts to the children nor any financial support. She also offered testimony that

P.R. failed to comply with a substantial portion of his family service plan for reunification.

The caseworker and the attorney ad litem for the children both recommended that

termination of P.R.’s parental rights would be in the children’s best interests.

Based on the Department’s evidence, the trial court’s finding that termination of

P.R.’s parental rights to his four children is in their best interests is supported by clear

and convincing evidence. Issue five is overruled.

12 CONCLUSION

The Associate Judge’s Report and Order terminating P.R.’s parental rights to E.R.,

P.R., Jr., S.R., and S.R. is affirmed.

Patrick A. Pirtle Justice