In the Interest of G.W., a Child v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 16, 2024
• Docket: 07-24-00229-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00229-CV

IN THE INTEREST OF G.W. A CHILD

On Appeal from the 316th District Court Hutchinson County, Texas Trial Court No. 45,599, Honorable James Mosley, Presiding

September 16, 2024 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, D.W.,1 appeals from the trial court’s order terminating her parental rights

to her daughter, G.W. By a sole issue, she challenges the sufficiency of the evidence to

support the trial court’s best-interest finding. We affirm.

1 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM. CODE ANN. § 109.002(d). See also TEX. R. APP. P. 9.8(b). Termination against the unknown father was nonsuited without prejudice with the expectation of pursuing termination in the future. BACKGROUND

Appellee, the Texas Department of Family and Protective Services became

involved with D.W. in December 2021, one day after G.W.’s birth, due to a lack of bonding

and inability to feed the child. Allegations of neglect were ruled out. A year and a half

later, the Department became aware that D.W. and her daughter were living in a motel

room with frequent traffic from known drug users. D.W. tested positive for

methamphetamine use but denied she was using drugs. The motel room was dirty and

strewn with trash which created an unsafe environment for the child. D.W. did not have

a stable home or any employment. G.W. was removed for neglectful supervision and

was eventually placed with D.W.’s maternal aunt and uncle.2 D.W. was allowed

supervised visitation.

The Department implemented a family service plan for D.W. with a goal of family

reunification. Her caseworker advised her of the requirements of the plan. A year later,

the Department sought termination based on D.W.’s continued drug use, her inability to

find employment, and the lack of a stable home. The trial court heard testimony from the

caseworker, D.W., and a CASA volunteer. Thereafter, the trial court found that D.W. (1)

knowingly placed or knowingly allowed her child to remain in conditions which

endangered her physical and emotional well-being; (2) engaged in conduct or knowingly

placed the child with persons who engaged in conduct which endangered her physical or

emotional well-being; (3) failed to comply with the provisions of a court order that

specifically established the actions necessary to obtain the return of her child; and (4)

2 Initially, their home was found to be in poor physical condition, but those concerns were remedied.

2 used a controlled substance in a manner that endangered the health or safety of her child

and failed to complete a court-ordered substance abuse treatment program or after

completing such program, continued to abuse a controlled substance. The trial court also

found that termination of D.W.’s parental rights was in her child’s best interests. See TEX.

FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), and (P), (b)(2).

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). “‘Clear and convincing evidence’ means 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.

In reviewing a termination proceeding, the standard for sufficiency of the evidence

is that discussed in In re K.M.L., 443 S.W.3d 101, 112–13 (Tex. 2014). In reviewing a

best-interest finding, appellate courts consider, among other evidence, the factors set

forth in Holley, 544 S.W.2d at 371–72.

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). Consequently, termination proceedings are strictly construed in favor of 3 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 not be

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 at 112–13. 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 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).

In a factual sufficiency review, a court of appeals must give due consideration to

evidence that the fact finder could reasonably have found to be clear and convincing. In

re J.F.C., 96 S.W.3d at 266 (citing In re C.H., 89 S.W.3d at 25). We must determine

whether the evidence is such that a fact finder could reasonably form a firm belief or

conviction about the truth of the Department’s allegations. In re J.F.C., 96 S.W.3d at 266. 4 We consider whether disputed evidence is such that a reasonable fact finder could not

have resolved that disputed evidence in favor of its finding. If, in light of the entire record,

the disputed evidence that a reasonable fact finder could not have credited in favor of the

finding is so significant that a fact finder could not reasonably have formed a firm belief

or conviction, then the evidence is factually insufficient. Id.

BEST-INTEREST FINDING

D.W. does not challenge any of the statutory grounds for termination and as a

result, the trial court’s findings related to those grounds are final. Rather, she contends

the evidence is insufficient to support the trial court’s best-interest finding. We disagree.

The Department was required to prove by clear and convincing evidence that

termination of D.W.’s parental rights was in her child’s best interest. § 161.001(b)(2); 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 her parental rights was in the child’s best interest

can we conclude the evidence is legally insufficient. Id. (citing In re J.F.C., 96 S.W.3d at

266).

There is a strong presumption that the best interest of the 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 the child in a safe environment is also presumed to

be in the child’s best interest. See § 263.307(a). To assess the trial court’s best-interest

finding, we consider factors enumerated in the non-exhaustive list set forth in section

263.307(b) of the Family Code.

5 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 In re

C.H., 89 S.W.3d 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 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.).

6 ANALYSIS

Appellant asserts the trial court’s best-interest finding is contrary to the

overwhelming weight of the evidence. Rather than presenting her argument with legal

challenges to the best-interest finding and an analysis of the Holley factors, she claims

her parental rights were terminated because she is poor, has no transportation, and

cannot afford a home “nice enough to satisfy the State.” A review of the evidence shows

the trial court’s best-interest finding is supported by clear and convincing evidence.

The caseworker admitted she and D.W. had a “rocky relationship” and D.W.

blamed the “whole system” for her lack of progress with her family plan. Although D.W.

made efforts to comply with the requirements of her service plan, her conduct regarding

her service plan was described as inconsistent and she did not complete the

requirements. She successfully completed a thirty-day residential treatment program for

addiction; however, she admitted to relapses and addressed them by “self-reflecting” and

isolation. The caseworker testified she requested testing via text messages and email

but D.W. no-showed numerous times which the Department interprets as “presumed

positives.” See In re T.H., No. 07-07-00391-CV, 2008 Tex. App. LEXIS 6107, at *10 (Tex.

App.—Amarillo Aug. 12, 2008, no pet.) (mem. op.). D.W. claimed she had no

transportation to attend drug testing and blamed the Department for not providing her

assistance. The caseworker admitted she was unable to arrange transportation on two

of six occasions.3 But the caseworker testified that D.W. would sometimes delay testing

3 D.W. contacted the caseworker’s supervisor and filed a complaint.

7 for a day which was suspicious since timing is critical in drug testing. According to the

caseworker, delayed testing is considered as noncompliance.

D.W. moved frequently which exposed her daughter to others who were involved

with drugs. When D.W. was asked if she was aware her drug use could place her child

in danger, she answered, “yes” but testified she was working her services to improve her

situation. The caseworker testified D.W. lived with a friend at one point but the home

could not accommodate a space for her daughter. D.W. reported she had found an

apartment but would not provide an address. During the final hearing, she claimed a

lease was being prepared but admitted if she obtained the return of her child, they would

have to live in a motel until the lease was finalized. Ultimately, she failed to provide proof

of stable housing for her child.

D.W. updated the caseworker on her job searches. The caseworker testified D.W.

reported she had interviews with two different coffee chains but there was no confirmation

she had applied. D.W. claimed she was not offered employment at either chain but did

not convey those rejections to the caseworker. She told the caseworker Tesla had offered

her a position, but she refused to relocate. She also claimed to be a caregiver making

$450 per month but did not provide any documentation of such employment. D.W.

testified she suffered from blackouts which prevented her from pursuing some job

interviews. She did not, however, report her blackouts to the Department and could not

explain how she would care for her child if she experienced blackouts while with her. At

the time of the final hearing, she was working part-time for a friend in his construction

business but had only been employed for one week. The evidence showed she did not

provide proof of suitable employment over the course of the proceedings. 8 The caseworker opined that D.W.’s failure to perform all her services and maintain

a drug-free lifestyle was not in the child’s best interest.4 G.W. was thriving in her

placement with D.W.’s maternal aunt and uncle. They were bonded and there were no

concerns with the placement. The child’s needs were being met and although she had

no medical needs, she was in speech therapy. The caseworker verified that G.W.’s

current placement was interested in pursuing adoption.

D.W. was adamant about having her daughter returned to her but admitted she

had no stability. She testified she is bonded with her daughter and enjoys playing with

her during their visits. When asked why it was in G.W.’s best interest to be with her, she

answered, “because I’m her mother and nobody can love my child like I do.” She

acknowledged, however, that drug use was not in her child’s best interest and testified

she would not “mess up.” On cross-examination, she vowed to do her best but was

reminded that she had a year to do so and did not.5

The CASA volunteer testified she had monthly contact with D.W. She had

concerns regarding D.W.’s lack of a stable home, lack of employment, and her missed

drug screenings. She visited the relative placement’s home several times and had no

concerns. She described the maternal aunt and uncle as “adoption motivated” and

4 The trial court found the Department proved section 161.001(b)(1)(P) as a predicate ground for

termination and although not challenged by D.W., it may be considered in a best-interest analysis. In re C.H., 89 S.W.3d at 28. The Supreme Court recently addressed subsection (P) in In re R.R.A., 687 S.W.3d 269 (Tex. 2024). The Court held that a fact finder may infer the risk of endangerment to a child from a parent’s drug use and that the Department need not establish a direct causal link between drug use and endangerment. Id. at 278. A reviewing court should not evaluate drug-use evidence in isolation but should consider additional evidence showing drug use presents a risk to a parent’s ability to parent. Id.

5 Just before the hearing commenced, the trial court denied D.W. an extension which she requested

to continue working her services and prove she could provide her daughter with a stable home. 9 recommended termination of D.W.’s parental rights as being in G.W.’s best interest. She

did not believe D.W. would complete the required services “because she doesn’t feel like

she needs to. She feels she’s already done everything.”

G.W. was too young to express her desires. The record shows G.W.’s relative

placement was meeting all her needs and wished to adopt her in the future. D.W. did not

demonstrate she had the present or future ability to meet her child’s need for a safe,

stable, and permanent home. Her failure to complete her family service plan is relevant

to some of the Holley factors. In re S.A.M., No. 04-18-00607-CV, 2019 Tex. App. LEXIS

1020, at *16 (Tex. App.—San Antonio Feb. 13, 2019, pet. denied) (mem. op.). Based on

the evidence presented, we find the evidence is legally and factually sufficient to support

the trial court’s best-interest finding. D.W.’s sole issue is overruled.

CONCLUSION

The trial court’s Order of Termination is affirmed.

Alex Yarbrough Justice