in the Interest of F.E. III

• Court: Court of Appeals of Texas
• Decided: June 25, 2015
• Docket: 09-15-00030-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00030-CV ____________________

IN THE INTEREST OF F.E. III

_______________________________________________________ ______________

On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. F-220,492 ________________________________________________________ _____________

MEMORANDUM OPINION

This is a parental-rights termination case. Following a bench trial, the trial

court terminated Mother’s and Father’s respective parent-child relationships with

F.E. III, their two-year-old son.1 By clear and convincing evidence, the trial court

found that statutory grounds existed to terminate their relationships. The trial court

also found that terminating their relationships with F.E. III would be in his best

interest. See Tex. Fam. Code Ann. §§ 161.001(1)(D), (E), (O), (P), (Q), 161.001(2)

1 To protect the identity of the parties, we identify F.E. III by using his initials, and we identify his parents by referring to them as Mother and Father. See Tex. R. App. P. 9.8. Several months before the trial, Mother had a daughter, L.M.; Mother’s parent-child relationship with L.M. is not at issue in this proceeding. 1 (West 2014). Father did not appeal from the order terminating his rights. However,

Mother, in five issues, appeals from the trial court’s order terminating her parental

relationship with F.E. III. In her first four issues, Mother challenges the legal and

factual sufficiency of the evidence supporting the four statutory grounds on which

the court based its decision to terminate her rights. In her fifth issue, Mother

challenges the legal and factual sufficiency of the evidence supporting the trial

court’s best-interest finding.

We overrule Mother’s first issue, as the record contains legally and factually

sufficient evidence to support the trial court’s order terminating Mother’s rights

under section 161.001(1)(O) of the Texas Family Code. Tex. Fam. Code Ann. §

161.001(1)(O). We also overrule Mother’s fifth issue, as the record contains

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

finding. Because resolving issues two through four would not alter our conclusion

that the order terminating Mother’s rights should be affirmed, we need not reach

Mother’s other three issues. See Tex. R. App. P. 47.1 (requiring the courts hearing

appeals to issue written opinions that are as brief as practicable but that address all

issues necessary to a final disposition of the case being appealed).

Standard of Review

In reviewing a legal sufficiency challenge to an order terminating a parent’s

rights to custody of a child, the evidence admitted during the trial is reviewed “in 2 the light most favorable to the 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 256, 266 (Tex. 2002). In reviewing a factual sufficiency

challenge to such orders, the standard of review requires that an appeals court give

“due consideration to evidence that the factfinder could reasonably have found to

be clear and convincing.” Id. Under a factual sufficiency standard, a standard that

remains highly deferential to the factfinder’s role in evaluating and weighing the

evidence, the factfinder’s findings will be deemed to be sufficient unless the

evidence that could not have been credited in favor of the finding is so significant

that the factfinder could not have reasonably formed a firm belief or conviction

that the challenged finding was true. See id.

Failure to Comply with Court Order

In issue one, Mother challenges the trial court’s finding that she failed to

comply with the terms of a court order establishing what she was required to do to

have her child returned to her care. See Tex. Fam. Code Ann. § 161.001(1)(O).

With respect to this issue, we note that Mother does not argue that the State failed

to establish that F.E. III was not in the Department’s custody for at least nine

months following his removal, that the State failed to show that F.E. III had been

removed from her care due to abuse or neglect, or that the State failed to show that

3 she had not successfully completed a rehabilitation program, as required by one of

the trial court’s orders. See id.

The testimony at the trial established that F.E. III was born in 2012. When

F.E. III was approximately 15 months of age, Mother voluntarily placed F.E. III in

the custody of her mother at the Department’s request due to its concern over her

use of controlled substances.

In March 2014, the Department filed suit alleging that there was an

immediate danger to F.E. III’s health or safety, and it requested that the trial court

allow it to immediately take F.E. III into its possession. The trial court granted the

emergency request for removal, naming the Department as F.E. III’s temporary-

sole-managing conservator. Approximately one week after the trial court

authorized F.E. III’s emergency removal, the trial court conducted an adversarial

hearing at which Mother appeared; at the conclusion of the hearing, the trial court

rendered an order establishing the actions that Mother was required to take to

obtain custody of F.E. III. The order required that Mother comply with “each

requirement set out in the Department’s original, or any amended, service plan

during the pendency of this suit.”

Subsequently, Mother signed a Family Service Plan that, among other

things, required Mother to successfully complete an inpatient or an outpatient

rehabilitation program to address her use of drugs. Mother’s use of drugs and her 4 failure to successfully complete a drug rehabilitation program before the trial were

undisputed during the trial. Mother testified that she began using marijuana when

she was eleven years old, and that she had used marijuana off and on for

approximately ten years. When the Department became concerned about Mother’s

ability to care for F.E. III due to her use of drugs, she enrolled in three drug

treatment programs; however, Mother admitted that she failed to complete any of

them.

The record also reflects that Mother continued to use marijuana and

phencyclidine (PCP) 2 after the Department became concerned about her use of

these drugs. According to Mother, she began using PCP approximately four

months after F.E. III was born. After F.E. III was removed from Mother’s care, she

tested positive on several occasions for using marijuana and PCP. The testimony

before the trial court indicates that before F.E. III was born, Mother exposed him to

marijuana. Before Mother’s daughter was born, Mother exposed her to PCP.

Finally, Mother admitted during the trial that she had used PCP and marijuana just

two or three weeks before the trial.

2 Phencyclidine is a penalty one drug under section 481.102(8) of the Texas Health and Safety Code. Tex. Health & Safety Code Ann. § 481.102(8) (West 2010). The witnesses testifying at trial referred to the drug as PCP. See Bessard v. State, No. 14-14-00348-CR, 2015 WL 1262488, *1 (Tex. App.—Houston [14th Dist.] Mar. 17, 2015, pet. filed) (opinion subject to revision or withdrawal) (noting that phencyclidine is commonly referred to as PCP).

5 When the disputed issues are tried to the court, the trial court, as factfinder,

decides the weight and credibility to give to the testimony of the witnesses. City of

Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). In resolving any factual

disputes that exist in the testimony, the factfinder may believe one witness and

disbelieve others, and may resolve any inconsistencies in the testimony.

McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Thus, if the trier-of-

fact could reasonably believe the testimony of one witness or disbelieve the

testimony of another witness, the appellate court “cannot impose [its] own

opinions to the contrary.” City of Keller, 168 S.W.3d at 819.

In her argument, Mother emphasizes the evidence showing that she

complied with various requirements in the Family Service Plan; she omits any

mention of the trial court’s requirement that she complete a rehabilitation program.

However, the question before the trial court was not whether Mother could comply

with all of the requirements of the order if given another chance, nor was the issue

whether Mother substantially complied with the trial court’s order. See In re T.S.,

No. 09-13-00463-CV, 2014 WL 1400777, *5 (Tex. App.—Beaumont Apr. 10,

2014, no pet.); In re I.G., 383 S.W.3d 763, 771 (Tex. App.—Amarillo 2012, no

pet.); In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.). Mother’s

claim of substantial compliance and her testimony that she would complete a drug

rehabilitation program if given another chance are relevant only to the trial court’s 6 best interest determination. See In re M.C.G., 329 S.W.3d 674, 675-76 (Tex.

App.—Houston [14th Dist.] 2010, pet. denied) (supp. op. on reh’g).

As the factfinder, the trial court had the responsibility of weighing the

evidence to determine whether Mother complied with the terms of its order. While

Mother and F.E. III’s grandmother testified that if given another chance that

Mother could complete a drug rehabilitation program, the record contains clear and

convincing evidence showing that Mother had not done so as of the date of the

trial. In this case, Mother never disputed that she had not successfully completed

the rehabilitation plan as required by the court’s order. Since the trial court’s

finding that Mother failed to comply with subsection 161.001(1)(O) of the Texas

Family Code is undisputed, and is a finding that is supported by the evidence

admitted during the trial, Mother’s claim that no evidence or insufficient evidence

supports the finding is without merit. See Tex. Fam. Code Ann. § 161.001(1)(O). 3

We overrule issue one.

Best Interest

In issue five, Mother argues that the evidence is legally and factually

insufficient to support the trial court’s best interest finding. In determining what is

3 A single predicate finding under section 161.001(1) of the Texas Family Code will support a judgment of termination when there is also a finding that termination is in the best interest of the child under section 161.001(2). In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

7 in a child’s best interest, there is a “strong presumption that the best interest of a

child is served by keeping the child with a parent.” In re R.R., 209 S.W.3d 112,

116 (Tex. 2006); see Tex. Fam. Code Ann. § 153.131 (West 2014). Additionally,

courts also presume that a prompt and permanent placement of a child in a safe

environment is in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)

(West 2014). In reviewing whether the trial court’s decision to terminate Mother’s

parental rights is supported by sufficient evidence to show the termination is in

F.E. III’s best interest, we consider the nine non-exhaustive factors identified in

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 4 See Tex. Fam. Code Ann.

§ 263.307(b) (West 2014).

4 In Holley, the Texas Supreme Court applied the following factors to determine whether terminating the parent’s relationship was in the child’s best interest: • 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 which may indicate that 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). 8 When the termination hearing occurred, F.E. III was two years old. The

evidence before the trial court shows that Mother had been using marijuana for

approximately ten years, and that she had been using PCP for approximately two

years. Between the date the Department became involved in F.E. III’s care and the

date of the trial, Mother was tested on several occasions and the positive tests

allowed the trial court to conclude that Mother had not discontinued her use of

controlled substances. The conclusion that Mother is still using drugs is further

reinforced by Mother’s testimony that she last used marijuana and PCP

approximately three weeks before the trial. Based on Mother’s history of drug use,

her inability to complete a drug rehabilitation program, and the testing, the trial

court could reasonably conclude that Mother would not be able to discontinue her

use of controlled substances. Based on Mother’s history that she left F.E. III in the

care of other family members when using drugs, the trial court’s conclusion that

Mother could not adequately care for F.E. III when using drugs is reasonable.

From the evidence, the trial court could reasonably infer that Mother’s inability to

discontinue her drug use posed a significant problem that impairs her ability to

fulfill F.E. III’s physical and emotional needs.

Nevertheless, Mother’s inability to avoid these two controlled substances

was not shown to have affected her ability to obtain and maintain a home. The

evidence shows that Mother provided housing for F.E. III. Additionally, there was 9 no evidence showing that Mother had ever been violent toward F.E. III. Instead,

the evidence shows that Mother loves F.E. III, and that Mother has the ability to

function adequately as a parent except when using drugs.

With respect to the programs available to the parties, the evidence shows

that Mother failed multiple times in her efforts to complete a drug rehabilitation

program. There was also evidence showing that with government assistance,

Mother could provide a place for her son to live.

With the exception of the evidence that relates to Mother’s use of controlled

substances, the record contains scant evidence that Mother’s relationship with F.E.

III was improper. However, the record does indicate that Mother took F.E. III from

his grandmother’s care in violation of the voluntary safety plan that was

established by the Department. Mother and F.E. III’s grandmother attempted to

excuse Mother’s conduct for taking the child from the grandmother’s care during

the trial. F.E. III’s grandmother testified that Mother possibly told her she was

taking her son before she actually left with him, although she also stated she could

not remember if Mother asked to take him or not. Mother testified that she was

unaware that her agreement with the Department required F.E. III to be supervised

at all times only by certain people, and she explained that another adult was with

her when she took her son from the grandmother’s home. According to Mother,

she was being supervised by her boyfriend at the time she took F.E. III from the 10 grandmother’s home. However, the trial court was not required to accept the

Mother’s excuses for taking F.E. III from the grandmother’s home. The trial court

could have considered Mother’s act, in the face of her excuse, to have been

improper in light of her voluntary agreement to have her family members supervise

F.E. III while she was in his presence.

There was also testimony at the trial relevant to the goals the parties had for

F.E. III. The testimony by the Department’s employee during the trial indicates

that the Department’s goal was to find a relative who would adopt F.E. III. There

was evidence indicating that the Department had placed F.E. III in the home of his

aunt following F.E. III’s emergency removal. Mother, who has a good relationship

with her aunt, is able to visit him when she is not using drugs. According to the

employee of the Department, F.E. III is doing well in his aunt’s home. According

to Mother’s testimony, F.E. III and her daughter are both living with her aunt, and

her children were being “well taken care of.” While Mother thought that F.E. III’s

interest would best be served if allowed to remain with her because she loves him,

the trial court, as the finder of fact, was entitled to give little weight to her

testimony.

With respect to Mother’s parenting ability, Mother’s testimony indicates that

she attended a parenting class after F.E. III was removed from her care. Mother

testified that she learned from the class. Nevertheless, the problem with Mother’s 11 parenting, based on the evidence admitted at trial, relates principally to Mother’s

use of controlled substances and her inability to discontinue using them. A parent’s

drug-related conduct may be given significant weight by the factfinder in deciding

whether terminating a parent’s rights is in the child’s best interest. Dupree v. Tex.

Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas

1995, no writ). Therefore, the trial court could reasonably discount Mother’s

evidence about her parenting ability in deciding whether terminating her rights

would be in F.E. III’s best interest, as the evidence regarding her use of drugs

precluded her ability to responsibly parent F.E. III.

Based on all of the evidence before the trial court, the trial court could

reasonably have formed a firm belief or conviction that Mother’s use of controlled

substances would continue to the extent that they would jeopardize F.E. III’s well-

being. Its conclusion that terminating Mother’s parental rights would be in F.E.

III’s best interest is supported by clear and convincing evidence in light of the

evidence admitted at the trial. See In re J.F.C., 96 S.W.3d at 266; see also Toliver

v. Tex. Dep’t of Family and Protective Servs., 217 S.W.3d 85, 102 (Tex. App.—

Houston [1st Dist.] 2006, no pet.).

Having considered the Holley factors, and the evidence the trial court had

before it, we conclude the best interest finding is supported by legally and factually

12 sufficient evidence. We overrule issue five, and we affirm the trial court’s

judgment.

AFFIRMED.

________________________________ HOLLIS HORTON Justice

Submitted on April 6, 2015 Opinion Delivered June 25, 2015

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