in the Interest of J.G. and T.S.A.G., Children

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-18-00017-CV

IN THE INTEREST OF J.G. AND T.S.A.G., CHILDREN

On Appeal from the County Court at Law Lamar County, Texas Trial Court No. 86294

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Burgess MEMORANDUM OPINION Jake’s1 and Tara’s use of illegal drugs resulted in the Texas Department of Family and

Protective Services (the Department) taking custody of their seven children. In this case, the

Department sought termination of the parental rights of Jake and Tara to their two youngest

children, J.G. and T.S.A.G.2 After a hearing, the trial court found that there were statutory

grounds3 to terminate the parental rights of Jake and Tara and that termination was in the best

interests4 of J.G. and T.S.A.G. On appeal, Jake challenges the legal and factual sufficiency of the

evidence supporting the trial court’s finding that there were statutory grounds to terminate his

parental rights.5 Jake and Tara challenge the legal and factual sufficiency of the evidence

supporting the trial court’s finding that termination of their parental rights was in the best interests

of J.G. and T.S.A.G. Because we find that sufficient evidence supports the trial court’s findings,

we will affirm the trial court’s judgment.

I. Background

At trial, the evidence showed that the five older children were removed from the family

home on March 8, 2017, because of ongoing drug use, conditions of the home, and the history of

1 We refer to the children by their initials and to their family members by pseudonyms. See TEX. R. APP. P. 9.8(b)(2). 2 In a separate order, the trial court appointed the maternal great-grandparents permanent managing conservators of the five older children and appointed Jake and Tara as possessory conservators. 3 See TEX. FAM. CODE ANN. § 161.001(b)(1) (West Supp. 2017). 4 See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2017). 5 The trial court found that the grounds set forth in subsections (D), (E), (F), (N), (O), and (P) of Section 161.001(b)(1) supported termination of Jake’s parental rights. See TEX. FAM. CODE ANN. § 161.001(b)(1) (D), (E), (F), (N), (O), (P) (West Supp. 2017).

2 violence. In interviews, the children (1) told investigators that both of their parents used

marihuana, (2) could explain how to smoke it, and (3) told investigators that their parents would

“act out of their heads,” then pass out. Jake was present during the removal process and exhibited

red and glassy eyes, slurred speech, and a fuzzy and confused demeanor. Tiffany Massey testified

that Jake appeared to be under the influence of a mind-altering substance. She also testified that

the Department had been involved with the family since the birth of the first child6 and had

attempted to deal with the same issues of drugs, family violence, and neglect, with little or no

success. Massey reported that J.G. had previously been removed from the home in July 2015, after

both J.G. and Tara tested positive for methamphetamine at his birth,7 and that Tara had admitted

that she had used methamphetamine weekly during her pregnancy. T.S.A.G. was born on March

27, 2017, tested positive for methamphetamine, and was removed two days later. She has been in

the care of Randy Smith and his wife since that time.

The evidence also showed that, during the course of the case, Tara did not attend the court-

ordered drug treatment, missed several of her required drug tests, and tested positive for

methamphetamine at least once. In September 2017, she admitted that she used methamphetamine

and that she was arrested for possession of a controlled substance in November 2017. There were

several months in which she could not be found, and after she got out of jail, she refused to tell the

Department where she was living. Tara attended nine scheduled visitations with the children, but

6 The oldest child was nine years old at the time of trial. 7 Apparently, J.G. was returned to the family home for some period of time, but was voluntarily allowed to live with a couple, the Elizondos, with whom Tara was acquainted after a short period of time. J.G. has been in the Elizondos’ care since that time. At the time the other children were removed, J.G. resided with the Elizondos. J.G. was joined in the case and taken into the Department’s custody on March 15, 2017. 3 her visitation was suspended in July 2017 for non-compliance with her family service plan.

Although the suspension order provided that her visitation would be restored if she produced a

negative drug test, Tara never provided the Department with one. In addition, in September 2017,

Tara was arrested for possession of synthetic marihuana, for which she was convicted. At the time

of trial, Tara had a pending felony possession of a controlled substance charge. Tara had not

completed the requirements of her family service plan, as ordered by the trial court, at the time of

trial.

Tara testified that she was currently living with Jake’s mother and that she was not working.

She admitted that she has struggled with drugs, but claimed that she was sober, going to church,

and attending Celebrate Recovery once a week. She testified that she was not currently in a

relationship with Jake, but that she was not going to give up on him. She claimed that she had

been in a GED program before she was arrested and that she planned to start again. Tara also

testified that she had an offer of community supervision with Substance Abuse Felony Punishment

(SAFP) in her pending criminal case.

On May 30, 2017, Jake brutally beat Tara, knocking her unconscious and putting her in the

hospital.8 This resulted in Jake’s arrest and conviction for family violence assault causing bodily

injury, two or more times within twelve months. Jake received a sentence of ten years’

imprisonment, which was suspended, and he was placed on community supervision with

conditions that he attend and complete SAFP, anger management classes, and parenting classes.

8 The evidence showed that Jake beat Tara so severely that she was bruised from head to toe, one eye was swollen shut, and blood covered both Tara and the inside of the horse trailer where they were staying. 4 Although both Jake and Tara asserted at trial that he had only been drinking alcohol on the night

of the beating, Tara admitted that she may have told the police that Jake had been using drugs.

Jake testified that he had been diagnosed as bi-polar and that he was not taking his

medications when the case began. When he does not take his medications, he becomes manic,

sporadic, paranoid, and delusional. He claimed that he is doing well in SAFP and that his problems

stemmed from not taking his medication. Jake admitted that there was no guarantee that he would

not stop taking his medication again, but did not think that posed a danger to his children.

Jake denied using methamphetamine, but offered no testimony regarding his use of other

illegal substances. Other testimony showed that Jake had admitted using marihuana and

methamphetamine when he was fifteen or sixteen. Further, in 2013 and 2015, he and Tara had

had encounters with the Department that involved reports of domestic violence and use of drugs

at Jake’s mother’s house, where they resided with their children.9 He admitted that he knew that

Tara tested positive for methamphetamine during her pregnancy with J.G. However, he denied

any knowledge of Tara’s continued use of methamphetamine.

Before his arrest, Jake attended four out of seven scheduled visitations with the children.

Although he did not have a positive drug test, he failed to go to a drug test on March 31, 2017, and

in May 2017, he came to the caseworker’s office in an intoxicated state, with blood-shot eyes, and

with his thought processes not intact, and made paranoid accusations against Tara. Jake did not

complete any of his court-ordered services.

9 In the 2013 encounter, Jake, Tara, and the other adults refused to take drug tests. In the 2015 encounter, Tara tested positive for methamphetamine while pregnant with J.G., resulting in the removal of J.G. after his birth. 5 II. Standard of Review

“Because the termination of parental rights implicates fundamental interests, a higher

standard of proof—clear and convincing evidence—is required at trial.” In re A.B., 437 S.W.3d

498, 502 (Tex. 2014). We are therefore required to “engage in an exacting review of the entire

record to determine if the evidence is . . . sufficient to support the termination of parental rights.”

Id. at 500. “[I]nvoluntary termination statutes are strictly construed in favor of the parent.” In re

S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985)).

A trial court may terminate parental rights only if it finds, by clear and convincing

evidence, that the parent has engaged in at least one statutory ground for termination and that

termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017);

In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012). “Clear and convincing evidence” is that “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.” TEX. FAM. CODE ANN. § 101.007 (West 2014); see

In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our

review of the evidence.

In our legal sufficiency review, we consider all the evidence in the light most favorable to

the findings to determine whether the fact-finder reasonably could have formed a firm belief or

conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex.

2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.). We

assume the fact-finder resolved disputed facts in favor of its finding, if a reasonable fact-finder

6 could do so, and disregarded evidence that it could have reasonably disbelieved or the credibility

of which reasonably could be doubted. J.P.B., 180 S.W.3d at 573.

In our factual sufficiency review, due consideration is given to evidence the trial court

could have reasonably found to be clear and convincing. In re H.R.M., 209 S.W.3d 105, 109 (Tex.

2006) (per curiam). We consider only that evidence the fact-finder reasonably could have found

to be clear and convincing and determine “whether the evidence is such that a fact[-]finder could

reasonably form a firm belief or conviction about the truth of the . . . allegations.” Id. at 108

(quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex.

2002). “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.” J.F.C., 96

S.W.3d at 266. “[I]n making this determination,” we must undertake “an exacting review of the

entire record with a healthy regard for the constitutional interests at stake.” A.B., 437 S.W.3d at

503 (quoting C.H., 89 S.W.3d at 26).

Despite the profound constitutional interests at stake in a proceeding to terminate parental

rights, “the rights of natural parents are not absolute; protection of the child is paramount.” In re

A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994));

see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). “A child’s emotional and physical interests must

not be sacrificed merely to preserve parental rights.” In re C.A.J., 459 S.W.3d 175, 179 (Tex.

App.—Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).

7 III. Analysis

A. Sufficient Evidence Supports Termination of Jake’s Parental Rights

1. Termination under Subsection (E)

In his first issue, Jake asserts that the evidence is legally and factually insufficient to

support the statutory grounds for termination found by the trial court. As previously noted, the

trial court found that subsections (D), (E), (F), (N), (O), and (P) of Section 161.001(b)(1) supported

termination of Jake’s parental rights. See TEX. FAM. CODE ANN. § 161.001(b)(1) (D), (E), (F), (N),

(O), (P). When there is a finding that termination is in the best interest of the child, a single

predicate finding under Section 161.001(b) will support a termination judgment. In re O.R.F., 417

S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (citing A.V., 113 S.W.3d at 362); In re

K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.)); see In re N.R., 101 S.W.3d

771, 775 (Tex. App.—Texarkana 2003, no pet.). We find that sufficient evidence supports the

trial court’s finding under subsection (E).

Under subsection (E), a person’s parental rights may be terminated if he or she “engaged

in conduct or knowingly placed the child with persons who engaged in conduct which endangers

the physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E).

“‘Endanger’ . . . ‘means to expose to loss or injury . . . .’” In re N.S.G., 235 S.W.3d 358, 367 (Tex.

App.—Texarkana 2007, no pet.) (quoting Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,

533 (Tex. 1987)). Termination under subsection (E) must be based on more than a single act or

omission. Instead, a “voluntary, deliberate, and conscious course of conduct by the parent is

required.” Perez v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex.

8 App.—El Paso 2004, no pet.) (citing In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland

1999, no pet.)); see Boyd, 727 S.W.2d at 533; N.S.G., 235 S.W.3d at 366–67.

It is not necessary that the conduct be directed at the child or that the child actually suffer

injury. Under subsection (E), it is sufficient that the child’s well-being is jeopardized or exposed

to loss or injury. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); N.S.G.,

235 S.W.3d at 367. A fact-finder “can ‘consider the history of abuse between the mother and the

father for purposes of subsection[] . . . (E), even if the children are not always present.’” In re

Z.M., 456 S.W.3d 677, 686 (Tex. App.—Texarkana 2015, no pet.) (quoting In re A.V.M., No. 13-

12-00684-CV, 2013 WL 1932887, at *5 (Tex. App.—Corpus Christi May 9, 2013, pet. denied)

(mem. op.)). Further, “the endangering conduct may include the parent’s actions before the child’s

birth, while the parent had custody of older children, including evidence of drug usage.” J.O.A.,

283 S.W.3d at 345.

“[C]onduct that subjects a child to a life of uncertainty and instability endangers the

physical and emotional well-being of a child. Drug use and its effect on a parent’s life and his

ability to parent may establish an endangering course of conduct.” J.L.B., 349 S.W.3d at 848

(quoting In re N.S.G., 235 S.W.3d 358, 367–68 (Tex. App.—Texarkana 2007, no pet.)); see J.O.A.,

283 S.W.3d at 345 n.4; In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.) (“Evidence

of illegal drug use or alcohol abuse by a parent is often cited as conduct which will support an

affirmative finding that the parent has engaged in a course of conduct which has the effect of

endangering the child.”). “Because it exposes the child to the possibility that the parent may be

impaired or imprisoned, illegal drug use may support termination under” subsection (E). Walker

9 v. Tex. Dep’t Family & Protective Servs., 312 S.W.3d 608, 617–18 (Tex. App.—Houston [1st

Dist.] 2009, pet. denied) (citing Vasquez v. Tex. Dep’t Protective & Regulatory Servs., 190 S.W.3d

189, 195–96 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (“terminating parental rights

despite there being no direct evidence of parent’s continued drug use actually injuring child”)).

While we recognize that imprisonment, standing alone, is not conduct which endangers the

physical or emotional well-being of the child, “intentional criminal activity which expose[s] the

parent to incarceration is relevant evidence tending to establish a course of conduct endangering

the emotional and physical well-being of the child.” In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—

Amarillo 2001, no pet.) (per curiam) (citing Allred v. Harris Cnty. Child Welfare Unit, 615 S.W.2d

803, 806 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.)).

In this case, the trial court heard testimony of Jake’s history of drug and alcohol abuse, and

his apparent conscious failure to take medications for his bi-polar condition, which culminated in

his brutal beating of Tara on May 30. The trial court also heard testimony that showed that Jake

allowed his older children to remain in an environment that involved both domestic violence and

drug use, including while Tara was pregnant with J.G. Also, despite Jake’s denials, the trial court

could have determined that Jake knew Tara was using methamphetamine while she was pregnant

with both J.G. and T.S.A.G.

Further, although Jake attributed his problems to his failure to take his medications, he

could offer no assurance to the trial court that he would not choose to forego his medications in

the future. In addition, he exhibited a lack of understanding that his failure to take his medications,

which admittedly caused him to become manic, paranoid, and delusional, would pose any danger

10 to his children. This was in spite of the fact that Jake was incarcerated at the time of trial as a

result of his beating of Tara, which was, at the least, the second time he committed an assault on a

family member within twelve months.

Considering all of the evidence, we find that the trial court could have reasonably formed

a firm belief or conviction that Jake engaged in a course of conduct which endangered the

emotional or physical well-being of his children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E);

J.O.A., 283 S.W.3d at 345; Z.M., 456 S.W.3d at 686; J.L.B., 349 S.W.3d at 848. We overrule

Jake’s first issue.

2. Best Interest of the Children

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

court’s finding that terminating his parental rights is in his children’s best interest. “There is a

strong presumption that keeping a child with a parent is in the child’s best interest.” In re J.A.S.,

Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus Christi Feb. 28, 2013, pet.

denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam)).

“Termination ‘can never be justified without the most solid and substantial reasons.’” In re N.L.D.,

412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan, 543

S.W.2d 349, 352 (Tex. 1976)).

In determining the best interests of the child, courts consider the following Holley factors:

(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 individuals seeking custody, (5) the programs available to assist these individuals, (6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent that may indicate

11 the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.

Id. at 818–19 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see In re E.N.C.,

384 S.W.3d 796, 807 (Tex. 2012); see also TEX. FAM. CODE ANN. § 263.307(b) (West Supp. 2017).

Proof of all of these factors is not a condition precedent to parental-rights termination.

C.H., 89 S.W.3d at 27; N.L.D., 412 S.W.3d at 819. Evidence relating to a single factor may suffice

in a particular situation to support a finding that termination is in the best interests of the child. In

re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.) (citing In re J.O.C., 47 S.W.3d

108, 115 (Tex. App.—Waco 2001, no pet.), disapproved on other grounds by J.F.C., 96 S.W.3d

at 267 n.39). When considering the child’s best interest, we may take into account that a parent is

unable to provide adequate care for a child, lacks parenting skills, or exercises poor judgment. In

re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.).

Parental drug abuse, which reflects poor judgment, is also a factor that may be considered

when determining the child’s best interest. In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort

Worth 2007, no pet.). Further, the amount of contact between the parent and child and the parent’s

failure to provide financial and emotional support, continuing criminal history, and past

performance as a parent are all relevant in determining the child’s best interest. See C.H., 89

S.W.3d at 28. Finally, evidence showing the parent committed acts or omissions that would be

statutory grounds for termination may also be probative that termination is in the best interest of

the child. Id.

At the time of trial, J.G. was less than three years old, T.S.A.G was one year old, and neither

child could express its desires, therefore this factor does not enter into our analysis. The evidence 12 showed that T.S.A.G. has continuously resided with the Smiths, her placement family, since she

was two days old and that she is attached to them. The Smiths have provided T.S.A.G. with a safe,

stable, drug-free, and violence-free environment. Mr. Smith testified that they want to adopt her

and will allow visitation with her siblings.

J.G. has resided with the Elizondos, his placement family, for all but a few months of his

life. The evidence showed that, even after J.G. was returned to his parents after his first removal,

the parents voluntarily returned him to the Elizondos because the parents could not care for him.

Testimony also showed that J.G. is very attached to the Elizondos, that he calls them mommy and

daddy, and that he claims their last name. The Elizondos plan to adopt J.G. and will allow him to

have a relationship with his siblings.

The evidence also showed that Jake had only visited his children four times during the case

and that he had not taken advantage of any services that would address his drug and violence

problems and enable him to become a better parent. As discussed above, the evidence also showed

that his continued abuse of drugs and alcohol, his failure to properly treat his bi-polar condition,

and his propensity for family violence have resulted in his incarceration and in an unsafe and

unstable environment for his children. On this record, we find that the remaining Holley factors

favor termination. Holley, 544 S.W.2d at 371–72.

Considering all of the evidence, we find that the trial court could have reasonably formed

a firm belief or conviction that termination of Jake’s parental rights was in the best interest of the

children. See TEX. FAM. CODE ANN. § 161.001(b)(2); C.H., 89 S.W.3d at 28. We overrule Jake’s

second issue.

13 B. Sufficient Evidence Supports Termination of Tara’s Parental Rights

In its judgment, the trial court found that there were statutory grounds for the termination

of Tara’s parental rights to J.G. and T.S.A.G under subsections (B), (D), (E), (F), (N), (O), and (P)

of Section 161.001(b) and that termination was in the best interest of the children. On appeal, Tara

only asserts that there is legally and factually insufficient evidence to support the trial court’s

finding that termination was in the best interest of the children.

As noted above, the children were too young to express their desires; therefore, this Holley

factor does not enter into our analysis. We have also discussed the children’s relationship with

their respective placements, and we take that evidence into account when considering the

remaining Holley factors. The evidence showed that Tara used methamphetamine during her

pregnancies with both J.G. and T.S.A.G. and that both children tested positive for

methamphetamine at birth, prompting their removal. In addition, the evidence showed that, when

J.G. was returned to the family home about a year after his birth, Tara voluntarily requested the

Elizondos permanently care for him, because she was unable to do so. Tara continued to use drugs

after this case began, resulting in both the revocation of her visitation privileges with the children

and her arrest and conviction for possession of controlled substances.

At the time of trial, Tara was facing another felony possession of controlled substance

charge from an arrest occurring six months after the case began. Tara made little or no effort to

complete any of the services offered by the Department to address her drug and parenting issues.

Further, although she asserted that she had recently become sober and was attending church and

Celebrate Recovery, the trial court could discount this testimony considering she did not provide

14 the Department with a negative drug test. This was particularly telling since a negative drug test

would have restored her visitation privileges. Finally, Tara’s plans for her children if she retained

her parental rights were indefinite and vague. On this record, we find that the remaining Holley

factors favor termination. See Holley, 544 S.W.2d at 371–72.10

Considering all of the evidence, we find that the trial court could have reasonably formed

a firm belief or conviction that termination of Tara’s parental rights was in the best interest of the

children. See TEX. FAM. CODE ANN. § 161.001(b)(2); C.H., 89 S.W.3d at 28. We overrule Tara’s

sole issue.

For the reasons stated above, we affirm the judgment of the trial court.

Ralph K. Burgess Justice

Date Submitted: June 21, 2018 Date Decided: August 1, 2018

Because we find that the evidence is factually sufficient to support the trial court’s judgment, we find that the 10

evidence is legally sufficient as well. 15