In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00196-CV __________________
IN THE INTEREST OF F.C.
__________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 18-12-16340-CV __________________________________________________________________
MEMORANDUM OPINION
Mother and Father seek to overturn the trial court’s judgment terminating their
parental rights to their child, John. 1 In separate appeals, Mother and Father argue the
evidence the trial court considered in a proceeding before the bench is insufficient
to support the trial court’s finding that terminating their parental rights to John is in
1 To protect the privacy of the parties involved in the appeal, we identify the parents and the child by using pseudonyms. See Tex. R. App. P. 9.8 (Protection of Minor’s Identity in Parental-Rights Termination Cases). 1 John’s best interest. 2 We conclude the evidence admitted in the trial provides
sufficient support for the trial court’s best-interest findings that Mother and Father
have challenged on appeal. We will affirm.
Background
The parties tried the case to the bench in several hearings that occurred in
December 2019, and in January, February, May, June, and July 2020. John was less
than two years old when the trial ended. Eight witnesses, including Mother and
Father, testified in the hearings that comprise the trial. At the end of the last day of
the trial, the trial court advised the parties that it would sign an order terminating
Mother’s and Father’s parental rights. The court also explained the reasons it was
doing so. In July 2020, the trial court signed the order at issue in this appeal in which
it terminated Mother’s and Father’s parental rights to John. In the order, the trial
court found the Department proved, by clear and convincing evidence, that Mother
and Father had each knowingly endangered John by placing him with persons who
engaged in conduct that endangered him and that both parents had failed to comply
with their respective family service plans.3 As to Mother, the trial court also found
2 See Tex. Fam. Code Ann. § 161.001(b) (authorizing courts to terminate the parent-child relationship when the court’s finding supporting its ruling terminating the relationship is coupled with a second finding that requires the trial court to also find that terminating the relationship would be in the child’s best interest). 3 See id. § 161.001(b)(1)(D), (E), (O). 2 that Mother’s parental rights to John should be terminated for an additional reason—
because she had used a controlled substance that endangered John and after having
done so, failed to complete a court-ordered substance abuse program.
In August, Mother and Father, by motion, requested that the trial court provide
them with written findings to support its rulings. The trial court did so, providing the
parties with forty-five separate findings of fact. Of these, Mother and Father
challenge only the trial court’s finding that terminating their respective parental
rights is in John’s best interest. The other forty-four findings the trial court made are
not challenged in the briefs that Mother and Father filed in support of their appeals.
That said, however, many of the findings that Mother and Father have not challenged
bear on the Court’s review of the trial court’s best-interest finding that Mother and
Father have challenged in their appeals. While we choose not to list each of the trial
court’s findings, those particularly relevant to our analysis of the trial court’s finding
terminating Mother’s and Father’s parental rights are summarized below:
• Mother and Father signed family service plans. The respective plans which required them to complete various classes and tasks designed to resolve the concerns the Department raised in the proceedings that resulted in John’s removal from Mother’s and Father’s care. • In November 2019, the trial court ordered Mother to provide a biological specimen for testing. When tested, the test result on the specimen was positive for methamphetamines. After the court was advised of the test result, it ordered both parents to submit hairs for testing to reveal whether the parents continued to use illegal drugs.
3 • Mother’s hair follicle test was positive for amphetamines, ecstasy, and oxycodone. Unlike Mother’s test, Father’s hair follicle test was negative. • In February 2020, the trial court established a plan that contained steps designed to allow Father to ultimately achieve a right to a program involving a monitored return that would have returned to him some of his authority to parent John. • In April 2020, the Department moved to modify the trial court’s temporary orders, alleging that Father had not complied with the requirements in the court’s order that contained the steps he needed to follow to be allowed to trigger John’s monitored return. • In May 2020, the Department informed the trial court that its goal had changed in the case from reuniting the family to terminating Mother’s and Father’s rights to allow John to be freed for adoption by a relative. That same month, the trial court found that “Mother was not compliant with her service plan and had not maintained contact with anyone in this case.” • In May 2020, Father took an additional drug test. The test results were positive for marijuana and cocaine. • In June 2020, Father took another drug test. It was positive for marijuana. • In June 2020, the trial court conducted another hearing. In the hearing, the court found that Father was only partially compliant with the requirements of his family service plan. The court found that Mother had not complied with the requirements of her plan. During the hearing, the trial court noted Mother’s testimony in the hearing indicating that she had not bonded with John. • At the conclusion of the hearings that comprised the trial, the trial court found the Department had shown, by clear and convincing evidence, that (1) Mother had knowingly placed or knowingly allowed John to remain in conditions or surroundings that endangered his physical or emotional well- being, (2) engaged in conduct or knowingly placed John with persons who engaged in conduct that endangered his physical or emotional well-being, (3) failed to comply with the provisions of her court-ordered family service plan, and (4) used a controlled substance in a manner that endangered John after failing to complete a court-ordered substance abuse program. • Turning to Father, the trial court found at the conclusion of the trial that the evidence established that (1) Father had knowingly allowed John to remain in conditions or surroundings that endangered his physical or emotional well-being, (2) engaged in conduct or knowingly placed John
4 with persons who engaged in conduct that endangered his physical or emotional well-being, and (3) failed to comply with the provisions of a court-ordered family service plan. • The trial court coupled its findings on the grounds for termination with best-interest findings, finding that terminating Mother’s and Father’s respective parental rights to be in John’s best interest.
Standard of Review
A trial court may terminate a parent-child relationship if the trial court finds,
by clear and convincing evidence, that a parent engaged in conduct that violated one
of the statutory grounds required to support a ruling terminating the parent’s rights
and finds that terminating the relationship is in the child’s best interest. 4 When the
Department asks trial courts to terminate a parent’s rights to continue parenting a
child, the Department has the burden of proof, and under that burden requires the
Department must prove the elements of its claim based on standard of proof that
requires clear and convincing evidence.5 The Family Code defines “clear and
convincing evidence” as “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.”6
4 Id. § 161.001(b); see In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012) (explaining that the Due Process Clause and Texas Family Code mandate a “heightened” standard of review that applies to parental-rights termination cases). 5 In re E.N.C., 384 S.W.3d at 803. 6 Tex. Fam. Code Ann. § 101.007; In re E.N.C., 384 S.W.3d at 802. 5 In their respective briefs, Mother and Father raise just one issue for our
review. Both argue that the evidence is legally and factually insufficient to support
the trial court’s best-interest finding. To be sure, neither parent has challenged the
trial court’s endangerment findings even though the trial court found that each parent
engaged in conduct that endangered John. In a family law case, the Department must
prove a termination ground under the Family Code exists and prove that terminating
the parent’s relationship with the child is in the child’s best interest to obtain a ruling
in favor of its claim seeking to terminate the parent-child relationship that exists
between a parent and his or her child. 7
As used in the Family Code, the term best interest is a term of art and
encompasses a broad facts-and-circumstances evaluation, which allows the
factfinder to exercise significant discretion in deciding if terminating the parent’s
rights is justified under the facts proven at trial.8 In a challenge that asserts the
evidence is legally insufficient to support the verdict, we review all the evidence in
the light that favors the finding the appellant is challenging in the appeal to determine
whether a reasonable trier of fact could have formed a firm belief or conviction that
7 Tex. Fam. Code Ann. § 161.001(b)(2). 8 See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 6 the finding the parent has challenged is true. 9 We allow the trial court an appropriate
degree of deference when it acts as the factfinder in a trial seeking the termination
of a parent’s parental rights, which means that we assume the factfinder resolved the
disputed facts that arose in the trial in a manner that favors its judgment.10 In our
review, we disregard evidence that a reasonable factfinder could have disbelieved or
found to have been incredible, but in doing so, we do not disregard the evidence that
a reasonable factfinder could not have found incredible or disbelieved in our analysis
of whether there is sufficient evidence to support the ruling that is being challenged
in the appeal.11 Thus, “[i]n 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.” 12 Thus, if the record reveals no reasonable factfinder could have formed a firm
belief or conviction from the evidence admitted in the trial that the finding the
appellant has challenged is true, we will find the evidence is legally insufficient to
support the finding the appellant is challenging in the appeal. 13 In this case, the
9 In re E.N.C., 384 S.W.3d at 802 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)); see In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). 10 In re E.N.C., 384 S.W.3d at 802. 11 Id. 12 In re K.M.L., 443 S.W.3d at 113. 13 In re E.N.C., 384 S.W.3d at 802. 7 parents chose to limit the factfinding they are challenging to the trial court’s best-
interest finding.
Mother and Father also assert the evidence is factually insufficient to support
the best-interest finding they challenge in their appeals. In a factual sufficiency
review, we review all the evidence admitted in the trial, including the evidence that
is in dispute or that conflicts with the factfinder’s verdict.14 The question in a factual
sufficiency review is whether the evidence admitted in the trial is sufficient to allow
the factfinder, acting reasonably, to form a firm belief or conviction that the
allegation that has been challenged on appeal is true.15 “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.”16
While Mother and Father did not challenge the trial court’s endangerment
findings, the evidence of endangerment no doubt impacted the trial court’s view on
whether terminating Mother’s and Father’s rights is in John’s best interest. Under
the Family Code, endanger includes “more than a threat of metaphysical injury or
14 In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). 15 In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). 16 In re J.O.A., 283 S.W.3d at 345 (quoting In re J.F.C., 96 S.W.3d at 266). 8 potential ill effects of a less-than-ideal family environment.” 17 And the
“endangering conduct need not be directed at the child.”18 When the evidence
reveals that a parent is using illegal substances and also shows the parent’s use of
the substance has affected the parent’s abilities to properly parent children, the
factfinder may, in its discretion, infer that the parent’s use of drugs is conduct that
has endangered the child.19
On appeal, Mother and Father rely heavily on a presumption under the Family
Code that “the appointment of the parents of a child as joint managing conservators”
is in the child’s best interest.20 While it’s true that such a presumption exists and we
have applied it in resolving Mother’s and Father’s appeal, the presumption is also
rebuttable. 21 For instance, another presumption in the Family Code that applies in
such cases is that a prompt and permanent placement of the child in a safe home is
in the child’s best interest. 22
17 In re E.N.C., 384 S.W.3d at 803. 18 Id. 19 See In re J.O.A., 283 S.W.3d at 345; In re A.J.H., 205 S.W.3d 79, 81 (Tex. App.—Fort Worth 2006, no pet.); In re R.W., 129 S.W.3d 732, 739 (Tex. App.— Fort Worth 2004, pet. denied). 20 Tex. Fam. Code Ann. § 153.131(b); see also In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (noting that a “strong presumption” exists favoring keeping a child with its parents). 21 Tex. Fam. Code Ann. § 263.307(a). 22 Id. 9 In analyzing whether the evidence supports the trial court’s finding that
terminating Mother’s and Father’s parental rights is in John’s best interest, we
consider the nine factors outlined in Holley v. Adams.23 While the Holley factors
guide our review, the factors identified in Holley are not exclusive.24 In reviewing
the evidence relevant to the trial court’s best-interest finding, we focus on whether
the evidence allowed the trial court to reasonably infer that terminating the parents’
respective relationships with John is in John’s best interest.25 In other words, our
review does not focus on what might have served the interests of the child’s
parents.26 Finally, we note that the evidence admitted in the trial need not necessarily
23 In Holley, the Texas Supreme Court applied these factors when reviewing a best-interest finding: • the child’s desires; • the child’s emotional and physical needs, now and in the future; • the emotional and physical danger to the child, 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 at 371-72. 24 In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). 25 Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). 26 Id. 10 address all nine of the Holley factors, particularly when, as here, “the evidence [is]
undisputed that the parental relationship endangered the safety of the child.” 27
Analysis
The evidence admitted during trial shows that the Department took custody
of John and that he has been in the Department’s custody for most of his life. The
trial court authorized the Department to remove John from Mother and Father shortly
after he was born. After the Department took John into its custody, Mother and
Father spent little time with him. The evidence shows they didn’t spend much time
with him either because they continued using illegal drugs or because they were not
fully compliant with the requirements in their respective family service plans. Each
of the plans required Mother and Father to stay drug free before they could see John.
John was not quite two years old when the case went to trial. Given John’s
age, he did not testify in the trial. Yet the record still contains evidence that allowed
the trial court to conclude John had not bonded with Mother or Father. Other
evidence in the trial shows he has formed a strong bond with his foster parents, a
married couple and also John’s relatives. John’s foster parents testified about the
bond John has with them. John’s court appointed special advocate, his CASA, also
addressed his current placement, explaining that John is doing “very well” in foster
27 In re C.H., 89 S.W.3d at 27. 11 care. The CASA testified that John’s foster parents are meeting his needs. Other
evidence in the trial shows that John has been placed in a safe, stable, and drug-free
home. This evidence supports the trial court’s conclusion that by terminating
Mother’s and Father’s rights, John would be freed and made available for adoption
that would further his interest in being promptly placed in a permanent, safe, stable,
and drug-free home.28
The evidence admitted in the trial about Mother’s and Father’s drug use
reveals how their use of drugs has affected their ability to provide John a safe home.
For instance, the evidence shows that Mother used marijuana throughout her
pregnancy, even though Father testified that he asked her to stop. Other testimony
shows that Mother and Father continued using illegal substances after John was
born, even though they both were aware they needed to stop using such drugs so that
the trial court would decide to return John to their care. The trial court heard
testimony showing that both parents failed to fully comply with the requirements in
their respective family service plans. For example, Mother failed to complete a
substance treatment plan as ordered by the court. While Father did complete a
substance abuse treatment plan, the testimony in the trial showed that he tested
28 See In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). 12 positive for cocaine and marijuana after completing his plan. Mother and Father
acknowledged in the trial that they have not yet established a strong bond with John.
One witness even testified that in his opinion, Father is an ongoing danger to John
because Father can be violent and “does not care for the safety of the child.”
In the appeal, Mother and Father argue that, if given another chance, they can
demonstrate they can give John a safe and stable home. In support of these
arguments, Mother and Father point to their testimony showing that they started
living with each other shortly before the trial began. Both point to testimony showing
that Father now has an apartment, which the evidence shows would be suitable for
raising a child. But even if the apartment itself is safe, the question is whether the
evidence shows John’s best interest is served by terminating his relationship with
his parents given that they have shown they are capable based on their past conduct
of endangering him. As to that question, the testimony in the record allowed the trial
court, as a reasonable factfinder, to infer that Mother and Father would continue to
use drugs should John be returned to their care. The testimony regarding their
historical use of illegal drugs also allowed the trial court to infer, as a reasonable
factfinder, that terminating their rights serves John’s best interest by allowing the
court to promptly place him in a safer, stable, and drug-free home than the one his
parents claimed they would give him if given another chance. While it’s true that
13 some of the evidence in the record shows that another factfinder might have reached
a different conclusion, the evidence Mother and Father point to is not so strong that
it demonstrates that a reasonable factfinder could not have found that terminating
their rights to John is in his best interest.29 While a parent’s right to raise his or her
child has a constitutional dimension, a parent’s right to maintain that right is not
absolute.30
Boiling it down, given a record containing evidence demonstrating Mother’s
and Father’s past involvement with illegal drugs, showing they continued to use
illegal drugs after John was removed from their home, indicating that the parents
failed to fully comply with the requirements of their respective family service plans,
and establishing that John has formed a strong bond with his foster parents and not
with them, we hold the evidence is legally and factually sufficient to support the trial
court’s finding that terminating their parental rights is in John’s best interest.31
29 See Tex. Fam. Code Ann. § 263.307(a) (“In considering the factors established by this section, the prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest.”). 30 In re C.H., 89 S.W.3d at 26 (“Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.”). 31 See In re C.H., 89 S.W.3d at 28 (holding the same evidence relevant to reasons the factfinder relied on to find one or more statutory grounds were proven may also be relevant to the factfinder’s other required findings required by statute, that terminating the relationship is in the child’s best interest); In re M.R.J.M., 280 14 Conclusion
We conclude Mother’s and Father’s issues challenging the trial court’s best-
interest finding lacks merit. Accordingly, we affirm the trial court’s judgment
terminating Mother’s and Father’s parental rights to John.
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on January 4, 2021 Opinion Delivered February 4, 2021
Before Kreger, Horton and Johnson, JJ.
S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (“Conduct that subjects a child to a life of uncertainty and instability also endangers the child’s physical and emotional well-being.”). 15