COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00156-CV
IN THE INTEREST OF J.F., M.F., AND J.F., CHILDREN
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NUMBER: 323-91486J-09
MEMORANDUM OPINION 1
Appellant B.F. (Mother) appeals the trial court’s order terminating her
parental rights to three of her children, Ja.F., M.F., and Jo.F. (collectively, the
children). 2 Because the evidence was sufficient to show that termination of
Mother’s parental rights was in the children’s best interest, we affirm the trial
court’s judgment.
1 See Tex. R. App. P. 47.4. 2 We use aliases for the children and their relatives throughout this opinion. See Tex. R. App. P. 9.8(b)(2). I. BACKGROUND FACTS
Between 1995 and 2014, Mother gave birth to nine children: J.B., P.B.,
R.F., W.O., 3 Ja.F., 4 M.F., 5 Jo.F., an unnamed child, 6 and L.M. J.B. and P.B.
were removed from Mother’s care by Oklahoma Child Protective Services and
were eventually adopted by foster parents. Oklahoma Child Protective Services
also removed R.F. from Mother when R.F. was four months’ old, but Mother did
not know “the end result of it” and had not seen R.F. since the removal. During
this time, Mother had an “extensive substance abuse history” and had been
arrested for aggravated robbery in 2002, prostitution in 2008, and possession of
a controlled substance in 2013. Based on concerns about Mother’s drug use and
neglect of the children, the Texas Department of Family and Protective Services
(DFPS) initiated four investigations in 2009. These investigations resulted in the
removal of the children, but the children were eventually returned to Mother in
late 2010 after Mother substantially complied with DFPS’s service plans.
On June 17, 2013, DFPS received another referral regarding Mother’s
neglectful supervision of the children. The referrals noted that J.B., P.B., and
R.F. had been removed from her care in Oklahoma, that W.O. and another child
3 W.O. was born prematurely and died shortly after birth. 4 Ja.F. tested positive for cocaine at birth. 5 M.F. tested positive for cocaine at birth. 6 This child also was born prematurely at nineteen weeks and did not survive the birth. Mother described it as “more of a miscarriage.”
2 had been born prematurely and died, and that Ja.F. and M.F. had tested positive
for cocaine at birth. 7 Nikki Ferrell, an investigative supervisor with DFPS,
determined that Mother had been placed on bond due her arrest for possession
of a controlled substance but that her bond had been revoked because she had
tested positive for methamphetamine. Ferrell called Mother “about the
investigation,” but Mother “was very hostile” and uncooperative. Mother was
arrested shortly thereafter based on the revocation of her bond. Because DFPS
believed Mother’s brother would take the children back to Oklahoma, DFPS filed
a suit affecting the parent-child relationship (the SAPCR), requesting permission
to take possession of the children and termination of Mother’s parental rights.
See Tex. Fam. Code Ann. § 262.101 (West 2014). The trial court entered an
emergency order for the children to be removed immediately from Mother’s care.
See id. § 262.102 (West 2014).
A full adversary hearing was held on June 28, 2013, but Mother did not
appear because she had not been served with the SAPCR. After the hearing,
the trial court entered the following findings:
(1) there was a danger to the physical health or safety of the children which was caused by an act or failure to act of the person entitled to possession and for the children to remain in the home is contrary to the welfare of the children; (2) the urgent need for protection required the immediate removal of the children and makes efforts to eliminate or prevent the children’s removal impossible or unreasonable; and (3) notwithstanding reasonable efforts to eliminate the need for the children’s removal and enable the children
7 Mother admitted to using cocaine “within a couple of days” of Ja.F.’s birth.
3 to return home, there is a substantial risk of a continuing danger if the children are returned home.
See Tex. Fam. Code Ann. § 262.201(b) (West 2014). The trial court also entered
temporary orders that appointed DFPS as temporary managing conservator of
the children, limited Mother’s access to the children, and required Mother to
cooperate with DFPS. See id. § 105.001 (West 2014).
Under DFPS’s subsequent service plan, Mother was required to “actively
participate in therapy,” stay drug free, not participate in criminal activities, attend
all scheduled visitations with the children, develop a relapse-prevention plan,
attend Narcotics Anonymous at least three times a week, “engage” in a drug-
education group, maintain stable housing, participate in a parenting group,
maintain a source of income, complete a parenting class, submit to a drug
assessment, and “comply with all requests for random drug testing as requested
by [DFPS].” Chelvalier Levels, a DFPS conservatorship worker, reviewed the
service plan with Mother while she was incarcerated such that Mother
understood what was required.
Mother was released from jail in October 2013. After her release, she
visited the children three times between November 5, 2013, and March 20, 2014.
Mother averred that she never missed an appointment to see the children.
Mother gave birth to L.M. on February 18, 2014. Shortly after L.M. was born,
DFPS requested Mother to submit to a hair-strand test to determine if Mother had
been using drugs. Mother refused to take the test and refused all subsequent
4 requests for various reasons. DFPS removed L.M. from Mother in March 2014,
and L.M. tested positive for cocaine. 8 Mother had no explanation for why L.M.
tested positive shortly after his birth and did not believe that L.M. actually tested
positive. Indeed, Mother told Ferrell that DFPS “was harassing her.”
On March 21, 2014, DFPS—at the request of the children’s therapists and
guardian ad litem—filed a motion to modify the temporary orders to suspend all
visits between Mother and the children. DFPS gave several reasons for the
requested change:
[Mother] has an alternate lifestyle and a long and violent criminal history with convictions for prostitution and continuous drug abuse. This lifestyle has contributed to the recent and rapid deterioration of the children’s psychological health, and two of the children, [M.F.] and [Ja.F.], have required psychiatric inpatient treatment. . . . [M.F.] is currently in outpatient treatment . . . with severe emotional disturbances.
The children’s therapists have concluded that further visits with their mother are deleterious to their psychological health. Each visit or discussion of a visit has triggered behaviors that are extremely destructive. The foster parents have reported sexual acting out, insomnia, rage, uncontrolled crying, and behavior swings before and after visits by the mother.
These concerns arose after M.F. told her therapist that she had been sexually
abused multiple times while in Mother’s care. There was some indication that
this was the result of mother selling M.F. for sex in exchange for drugs. The trial
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00156-CV
IN THE INTEREST OF J.F., M.F., AND J.F., CHILDREN
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NUMBER: 323-91486J-09
MEMORANDUM OPINION 1
Appellant B.F. (Mother) appeals the trial court’s order terminating her
parental rights to three of her children, Ja.F., M.F., and Jo.F. (collectively, the
children). 2 Because the evidence was sufficient to show that termination of
Mother’s parental rights was in the children’s best interest, we affirm the trial
court’s judgment.
1 See Tex. R. App. P. 47.4. 2 We use aliases for the children and their relatives throughout this opinion. See Tex. R. App. P. 9.8(b)(2). I. BACKGROUND FACTS
Between 1995 and 2014, Mother gave birth to nine children: J.B., P.B.,
R.F., W.O., 3 Ja.F., 4 M.F., 5 Jo.F., an unnamed child, 6 and L.M. J.B. and P.B.
were removed from Mother’s care by Oklahoma Child Protective Services and
were eventually adopted by foster parents. Oklahoma Child Protective Services
also removed R.F. from Mother when R.F. was four months’ old, but Mother did
not know “the end result of it” and had not seen R.F. since the removal. During
this time, Mother had an “extensive substance abuse history” and had been
arrested for aggravated robbery in 2002, prostitution in 2008, and possession of
a controlled substance in 2013. Based on concerns about Mother’s drug use and
neglect of the children, the Texas Department of Family and Protective Services
(DFPS) initiated four investigations in 2009. These investigations resulted in the
removal of the children, but the children were eventually returned to Mother in
late 2010 after Mother substantially complied with DFPS’s service plans.
On June 17, 2013, DFPS received another referral regarding Mother’s
neglectful supervision of the children. The referrals noted that J.B., P.B., and
R.F. had been removed from her care in Oklahoma, that W.O. and another child
3 W.O. was born prematurely and died shortly after birth. 4 Ja.F. tested positive for cocaine at birth. 5 M.F. tested positive for cocaine at birth. 6 This child also was born prematurely at nineteen weeks and did not survive the birth. Mother described it as “more of a miscarriage.”
2 had been born prematurely and died, and that Ja.F. and M.F. had tested positive
for cocaine at birth. 7 Nikki Ferrell, an investigative supervisor with DFPS,
determined that Mother had been placed on bond due her arrest for possession
of a controlled substance but that her bond had been revoked because she had
tested positive for methamphetamine. Ferrell called Mother “about the
investigation,” but Mother “was very hostile” and uncooperative. Mother was
arrested shortly thereafter based on the revocation of her bond. Because DFPS
believed Mother’s brother would take the children back to Oklahoma, DFPS filed
a suit affecting the parent-child relationship (the SAPCR), requesting permission
to take possession of the children and termination of Mother’s parental rights.
See Tex. Fam. Code Ann. § 262.101 (West 2014). The trial court entered an
emergency order for the children to be removed immediately from Mother’s care.
See id. § 262.102 (West 2014).
A full adversary hearing was held on June 28, 2013, but Mother did not
appear because she had not been served with the SAPCR. After the hearing,
the trial court entered the following findings:
(1) there was a danger to the physical health or safety of the children which was caused by an act or failure to act of the person entitled to possession and for the children to remain in the home is contrary to the welfare of the children; (2) the urgent need for protection required the immediate removal of the children and makes efforts to eliminate or prevent the children’s removal impossible or unreasonable; and (3) notwithstanding reasonable efforts to eliminate the need for the children’s removal and enable the children
7 Mother admitted to using cocaine “within a couple of days” of Ja.F.’s birth.
3 to return home, there is a substantial risk of a continuing danger if the children are returned home.
See Tex. Fam. Code Ann. § 262.201(b) (West 2014). The trial court also entered
temporary orders that appointed DFPS as temporary managing conservator of
the children, limited Mother’s access to the children, and required Mother to
cooperate with DFPS. See id. § 105.001 (West 2014).
Under DFPS’s subsequent service plan, Mother was required to “actively
participate in therapy,” stay drug free, not participate in criminal activities, attend
all scheduled visitations with the children, develop a relapse-prevention plan,
attend Narcotics Anonymous at least three times a week, “engage” in a drug-
education group, maintain stable housing, participate in a parenting group,
maintain a source of income, complete a parenting class, submit to a drug
assessment, and “comply with all requests for random drug testing as requested
by [DFPS].” Chelvalier Levels, a DFPS conservatorship worker, reviewed the
service plan with Mother while she was incarcerated such that Mother
understood what was required.
Mother was released from jail in October 2013. After her release, she
visited the children three times between November 5, 2013, and March 20, 2014.
Mother averred that she never missed an appointment to see the children.
Mother gave birth to L.M. on February 18, 2014. Shortly after L.M. was born,
DFPS requested Mother to submit to a hair-strand test to determine if Mother had
been using drugs. Mother refused to take the test and refused all subsequent
4 requests for various reasons. DFPS removed L.M. from Mother in March 2014,
and L.M. tested positive for cocaine. 8 Mother had no explanation for why L.M.
tested positive shortly after his birth and did not believe that L.M. actually tested
positive. Indeed, Mother told Ferrell that DFPS “was harassing her.”
On March 21, 2014, DFPS—at the request of the children’s therapists and
guardian ad litem—filed a motion to modify the temporary orders to suspend all
visits between Mother and the children. DFPS gave several reasons for the
requested change:
[Mother] has an alternate lifestyle and a long and violent criminal history with convictions for prostitution and continuous drug abuse. This lifestyle has contributed to the recent and rapid deterioration of the children’s psychological health, and two of the children, [M.F.] and [Ja.F.], have required psychiatric inpatient treatment. . . . [M.F.] is currently in outpatient treatment . . . with severe emotional disturbances.
The children’s therapists have concluded that further visits with their mother are deleterious to their psychological health. Each visit or discussion of a visit has triggered behaviors that are extremely destructive. The foster parents have reported sexual acting out, insomnia, rage, uncontrolled crying, and behavior swings before and after visits by the mother.
These concerns arose after M.F. told her therapist that she had been sexually
abused multiple times while in Mother’s care. There was some indication that
this was the result of mother selling M.F. for sex in exchange for drugs. The trial
8 Levels stated that DFPS would have removed L.M. from Mother at birth based on Mother’s “extensive drug use and history with [DFPS]” but did not do so because Mother was evasive and “hid” from DFPS after L.M. was born. When L.M. was born, Mother was bound by the service plan, which required Mother to remain in contact with Levels.
5 court immediately entered a temporary restraining order prohibiting Mother from
contacting the children in any way.
At trial, Mother vehemently denied the sexual-abuse allegations and
suggested that the children had been coached to make those accusations.
Mother also stated that she had not used drugs since December 2010. Levels
testified that adoption of the children by the children’s foster parents would be in
the children’s best interest. Levels also detailed that Mother had failed to attend
parenting classes and Narcotics Anonymous meetings. Mother also failed to
complete a substance abuse relapse plan and had not notified DFPS that she
was employed. Levels further testified, however, that Mother attended individual
counseling and drug-education counseling. Levels expressed concern that
Mother intended to continue living with a man who had a violent and extensive
criminal history, had a history of substance abuse, and had recently tested
positive for cocaine. The children’s guardian ad litem also stated that Mother’s
parental rights should be terminated.
The trial court granted DFPS’s petition and terminated Mother’s parental
rights. The trial court found by clear and convincing evidence that Mother
“knowingly placed or allowed the children to remain in conditions or surroundings
which endanger the physical or emotional well-being of the children” and that she
“engaged in conduct or knowingly placed the children with persons who engaged
in conduct which endangers the physical or emotional well-being of the children.”
The trial court further found by clear and convincing evidence that termination of
6 Mother’s parental rights was in the children’s best interest. See Tex. Fam. Code
Ann. § 161.206 (West 2014); see also id. § 161.001(1)(D)–(E), (2) (West 2014).
The trial court appointed DFPS as the children’s managing conservator. See id.
§ 161.207 (West 2014). Mother filed an accelerated appeal. See Tex. R. App.
P. 28.4(a)(1).
II. LEGAL CONSIDERATIONS IN PARENTAL-TERMINATION CASES
“When the State seeks to sever permanently the relationship between a
parent and a child, it must first observe fundamentally fair procedures.” In re
E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745,
747–48, 102 S. Ct. 1388, 1391–92 (1982)). We strictly scrutinize termination
proceedings and strictly construe involuntary termination statutes in favor of the
parent. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at
554–55; Holick v. Smith, 685 S.W.2d 18, 20–21 (Tex. 1985).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a); E.N.C., 384 S.W.3d at
802. Evidence is clear and convincing if it “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.” Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d
at 802.
7 III. DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the finding and judgment.
Id. We consider evidence favorable to termination if a reasonable fact-finder
could, and we disregard contrary evidence unless a reasonable fact-finder could
not. See id. We cannot weigh witness credibility issues that depend on the
appearance and demeanor of the witnesses because that is the fact-finder’s
province. Id. at 573–74. And even when credibility issues appear in the
appellate record, we defer to the fact-finder’s determinations as long as they are
not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we give due deference to
the fact-finder’s findings and do not supplant the verdict with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a fact-finder could reasonably form a firm conviction or belief that the
parent committed one of the acts or omissions listed in section 161.001(1) and
that the termination of the parent-child relationship would be in the best interest
of the children. Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28
(Tex. 2002). If, in light of the entire record, the disputed evidence that a
8 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 in the truth of its finding, then the evidence is factually insufficient.
H.R.M., 209 S.W.3d at 108.
B. SECTION 161.001(2): BEST INTEREST
Mother argues in two issues that the evidence was legally and factually
insufficient to support the trial court’s finding that termination of her parental
rights was in the best interest of the children. There is a strong presumption that
keeping a child with a parent is in the child’s best interest. 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. Tex. Fam.
Code Ann. § 263.307(a) (West 2014).
We review the entire record to determine the child’s best interest. In re
E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative
of both the subsection-(1) ground and the best-interest determination. C.H., 89
S.W.3d at 28; see E.C.R., 402 S.W.3d at 249. Nonexclusive factors that the trier
of fact in a termination case may also use in determining the best interest of the
child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
9 (D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
E.N.C., 384 S.W.3d at 807. Undisputed evidence of just one factor may be
sufficient in a particular case to support a finding that termination is in the best
interest of the child. C.H., 89 S.W.3d at 27. On the other hand, the presence of
scant evidence relevant to each factor will not support such a finding. Id.
As Mother points out, the evidence showed that she had completed or was
attempting to complete many of the services required in DFPS’s service plan and
that the charge for possession of a controlled substance, which had led to her
incarceration in 2013, was eventually dismissed because “there was no evidence
in the laboratory room.” She argues that this evidence precludes a reasonable
fact-finder from concluding that termination was in the children’s best interest.
However, the trial court also heard evidence of Mother’s criminal and substance-
abuse history, which appeared to be continuing. There was also evidence that
Mother had prostituted M.F. to fund her drug habit. Mother continued to live with
her boyfriend who also had a criminal and substance-abuse history and who had
recently tested positive for cocaine. Mother believed it was acceptable to 10 continue to associate with him because “everybody make mistakes.” Mother
continually refused to submit to required drug testing. The children had been
removed from Mother previously and returned to her, only to be placed in the
same dangerous environment. The children had severe emotional problems that
required extensive therapy and hospitalization. M.F. was hospitalized after she
threatened to do herself and others harm. Ja.F. also was briefly hospitalized
because he threated harm to himself and others. Indeed, the children’s
therapists and guardian ad litem believed visits with Mother were too harmful to
the children. The children’s foster parents were able to provide them with a
stable environment and hoped to adopt the children. They also were diligently
providing the children with the therapies and structure that they needed. The
children told Levels that they loved their foster parents and wanted that
placement to be “their forever home.”
This evidence was probative of each nonexclusive factor and buttressed
the trial court’s conclusion regarding termination. 9 We conclude that this
evidence was legally and factually sufficient to allow a fact-finder to reasonably
9 Of course, we do not recite each and every fact supporting the trial court’s judgment. Although the evidence we recite is legally and factually sufficient to uphold the trial court’s best-interest determination, the record is rife with additional supporting evidence. Because we are affirming the trial court’s judgment, however, we are not bound to include an exhaustive and meticulous recitation. See In re A.B., 57 Tex. Sup. Ct. J. 595, 2014 WL 1998440, at *3–4, *6–7 (May 16, 2014).
11 form a firm belief or conviction that termination of Mother’s parental rights was in
the children’s best interest. Accordingly, we overrule issues one and two.
IV. CONCLUSION
Having overruled Mother’s issues, we affirm the trial court’s judgment. See
Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DELIVERED: October 2, 2014.