in the Interest of J.H., J.H., and J.H., Children

• Court: Court of Appeals of Texas
• Decided: June 30, 2021
• Docket: 07-21-00059-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-21-00059-CV ________________________

IN THE INTEREST OF J.H, J.H., AND J.H., CHILDREN

On Appeal from the County Court at Law Moore County, Texas Trial Court No. CL211-19; Honorable Delwin McGee, Presiding

June 30, 2021

MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Biological mother, April, appeals the trial court’s judgment terminating her parental

rights to Joseph, Justin, and Jasmine.1 On appeal, April challenges the evidence

supporting the trial court’s finding that termination of her parental rights was in the

children’s best interest. We affirm.

1 Due to the fact that the children have identical initials, we have used the pseudonyms the parties

have used in their briefing to facilitate a clear discussion of the facts of this case while protecting the children’s anonymity. See TEX. R. APP. P. 9.8(b). Though the parental rights of the father, “Clint,” were also terminated, he did not appeal that judgment. Background

The Department first became involved with the family in March 2019 based upon

reports of medical neglect. The Department deemed the allegation “unable to determine,”

and referred the family to the Family Based Safety Service division. Some months later,

in September 2019 and based on similar concerns, the Department again began to

investigate allegations that the parents were medically and physically neglectful of the

children and also allegations that drugs were being used in the home.

Again, we refer to the parents of the three subject children as April and Clint, as

the parties have. The three children are referred to as Joseph, Justin, and Jasmine. At

the time of the final hearing, the children were five, four, and two, respectively. Joseph

suffers from cerebral palsy, conductive hearing loss, bilateral chronic serous media,

microencephaly, hemiballismus, dystonia, dysarthria muscle weakness, speech delay,

global development delay, sleep disturbance, chorea, and ataxia. Joseph requires the

use of a wheelchair and a number of doctors’ appointments to address his medical

conditions. Justin has medical concerns with his vision. According to caseworker

testimony, the failure to attend Justin’s scheduled specialist appointments nearly resulted

in him suffering severe damage, including potential vision loss. Ultimately, surgery was

performed and corrected Justin’s condition. It appears that Jasmine does not suffer from

any chronic or serious medical conditions. The Department’s investigation revealed that

April and Clint failed to show or cancelled a number of critical medical appointments for

the children to treat serious medical conditions from which the boys suffered.

Both parents agreed to drug screens, both of which yielded positive results for

cocaine and marijuana. Drug screens on Jasmine, one year old at the time, returned

2 positive results for cocaine and marijuana. Ultimately, April admitted that she was using

cocaine and marijuana during the time the children were removed from her care.

April completed some of the court-ordered services and failed to complete others.

Notably, the record suggests she did not consistently attend AA/NA meetings as required.

She testified to having attended some meetings, though those times were unclear and

some unconfirmed. She also explained that she lost records of some attendance when

she broke her phone. Her attendance, according to the caseworker, was critical to her

being able to keep a drug-free lifestyle for herself and her children.

She availed herself of drug rehabilitation services, and her most recent drug

screens have yielded negative results. She testified that she had remained free of drugs

since November 2019. However, there is evidence that, following an evening of heavy

drinking, she wrecked a loaned car and fled the scene. She admitted that she continued

to drink alcohol throughout the case, having stopped drinking only about one month prior

to the final hearing.

Early on in the case, April went three months without visiting the children though

she now attends visitation. The children are currently living with their paternal

grandparents who have made great efforts in getting the children caught up with their

medical care and appear from the record to be providing the children with a stable and

loving home in which the children are doing very well. Joseph attends extensive and

regular physical, occupational, and speech therapy in their care. At the time of the final

hearing, the grandparents were in the process of getting Joseph a motorized wheelchair

to enable him to become more independent. They have modified their house to

accommodate his mobility needs and their vehicles allow them to transport the

3 wheelchair. Both grandparents, the children’s paternal aunt, and a personal care provider

all work together to get the children what they need. The case manager testified that the

grandparents not only meet but exceed the children’s medical needs. The children love

their grandparents and share a strong bond with them.

In contrast, April has moved frequently and her residence at the time of trial lacked

the modification that would allow Joseph to move about the house. April also lacks

transportation and relies on her sister for rides even though the sister’s car cannot

accommodate a wheelchair. During the pendency of the case, April’s continued sporadic

attendance and participation in the children’s medical care were also noted. Her proof of

employment was limited to one month of pay stubs and her statements that she was

previously working at a bar and at a restaurant in Cactus. She testified that her work

plans include working the night shift to allow for her to attend medical appointments.

April’s parental relationship with the three children was terminated. The trial court

found that several of the Texas Family Code’s statutory grounds supported termination

and that termination was in the children’s best interest. She appeals that termination now,

challenging only the trial court’s finding that termination of her parental rights is in the

children’s best interest.

Analysis – Best Interest of the Child

Parental rights may be involuntarily ended if a two-pronged test is met. That is,

clear and convincing evidence must establish both one or more of the statutory grounds

permitting termination and termination must be in the child’s best interests. See TEX. FAM.

CODE ANN. § 161.001(b) (West Supp. 2020); In re N.G., 577 S.W.3d 230, 232 (Tex. 2019)

(per curiam). April does not dispute that clear and convincing evidence established the

4 first prong, conceding that sufficient evidence supports the trial court’s findings under

subsections (D), (E), (N), and (O). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N),

and (O). Therefore, unchallenged predicate statutory grounds support the termination of

April’s parental rights. Said evidence also can support the trial court’s best-interest

finding. See In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.—Houston [14th Dist.] 2014,

pet denied) (citing, inter alia, In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)); see also In re

T.C., No. 07-18-00080-CV, 2018 Tex. App. LEXIS 6769, at *13 (Tex. App.—Amarillo Aug.

23, 2018, pet. denied) (mem. op.) (noting that a parent who opts to forgo a challenge to

predicate ground findings tacitly concedes that sufficient evidence supports those

findings). We turn our analysis to the evidence supporting the trial court’s best-interest

finding.2

In determining the best interest of a child, courts apply the non-exhaustive Holley

factors in performing their analysis. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976). Those factors include the following: (1) the desires of the child; (2) the present

and future emotional and physical needs of the child; (3) the present and future emotional

and physical danger to the child; (4) the parental abilities of the individuals seeking

custody; (5) the programs available to assist these individuals to promote the best interest

of the child; (6) the plans held by the individuals seeking custody of the child; (7) the

2 To determine whether the evidence is legally sufficient to support the trial court’s best-interest finding, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable fact-finder could form a firm belief or conviction that termination of parental rights is in the child’s best interest. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must perform “an exacting review of the entire record” in determining the factual sufficiency of the evidence supporting the termination findings. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). We review the whole record to decide whether a fact-finder could reasonably form a firm conviction or belief that termination of the parent-child relationship would be in the child’s best interest. See In re C.H., 89 S.W.3d at 28.

5 stability of the home of the parent and the individuals seeking custody; (8) the acts or

omissions of the parent which 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

foregoing factors are not exhaustive, and “[t]he absence of evidence about some of [the

factors] would not preclude a factfinder 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.

Additionally, a “trier of fact may measure a parent’s future conduct by his past conduct

[in] determin[ing] whether termination of parental rights is in the child’s best interest.” In

re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).

Here, the record demonstrates a fairly extensive failure on April’s part to show that

she had the ability to meet the present and future emotional and physical needs of the

children. Especially with respect to the two older children, Joseph and Justin, it would

appear they have specific medical needs that require a great deal of dedication and

logistical resources and organization, none of which April has demonstrated. The record

shows that it was allegations of medical neglect due to several missed crucial

appointments with healthcare providers that prompted Department involvement. Even

with so much emphasis placed on the importance of her getting the children the medical

care they need, her attendance and her participation in the appointments remained

substantially lacking considering the very serious and long-term medical conditions

suffered by Joseph, specifically. A child’s basic needs include medical care. In re

K.S.O.B., No. 01-18-00860-CV, 2019 Tex. App. LEXIS 2490, at *55 (Tex. App.—Houston

[1st Dist.] Mar. 19, 2019, no pet.) (mem. op.). April’s failure to make certain her children

got the appropriate medical care suggests she cannot understand the gravity of their

6 medical needs or simply lacks the ability to meet them, or both. Regardless of the reason,

it is relevant to the best-interest analysis that those needs were not met by her care. See

TEX. FAM. CODE ANN. § 263.307(b)(12)(A), (F) (West 2019) (considering whether parent

demonstrated adequate parenting skills when determining if parent was willing and able

to provide child with safe environment); see also In re M.A.A., No. 01-20-00709-CV, 2021

Tex. App. LEXIS 2315, at *68 (Tex. App.—Houston [1st Dist.] Mar. 25, 2021, no pet. h.)

(citing In re K.S.O.B., 2019 Tex. App. LEXIS 2490, at *56, to support position that trier of

fact can infer from parent’s past inattention to child’s medical needs that such inattention

will continue in future).3

Later allegations of neglectful supervision also speak to the parenting abilities of

April. April’s failure to protect or supervise her young children endangered their physical

and emotional well-being, further evidence that April cannot understand and meet the

needs of the children. See In re M.A.A., 2021 Tex. App. LEXIS 2315, at 49. 4

April’s erratic work and residential history also reveal that she is unable to provide

the children with a stable home. In re G.R., No. 07-16-00277-CV, 2016 Tex. App. LEXIS

3 We add that the record shows that April’s current residence would not accommodate Joseph’s wheelchair and that April currently lacks reliable transportation. This too strengthens the inference that April’s inability to meet the children’s medical needs would continue in the future. The Department testified that April had not developed a concrete plan for the day-to-day care of the children and for their special medical needs.

4 Pursuant to the Texas Supreme Court opinion in In re N.G., we generally review the trial court’s

findings under section 161.001(b)(1)(D) and (E) whenever challenged even when another ground for termination is sufficient. This is so because of the potential future consequences to a parent’s parental rights concerning a different child. See In re N.G., 577 S.W.3d at 235–37. The record here reveals a pattern of neglecting the children’s physical and emotional needs. Specifically, evidence supports a finding that April neglected the medical needs of at least the two older children, Joseph and Justin. This medical neglect endangers the children. See In re J.D.G., 570 S.W.3d 839, 852 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). As to evidence that April neglectfully supervised the children, we note that parent’s failure to protect or supervise young children also endangers the children’s physical or emotional well-being. See In re M.A.A., 2021 Tex. App. LEXIS 2315, at 49. The record contains sufficient evidence upon which the trial court could have found that subsections (D) and (E) supported termination of April’s parental rights.

7 11572, at *15 (Tex. App.—Amarillo Oct. 25, 2016, no pet.) (mem. op.) (noting that parent

was unable to maintain steady employment or housing during termination case in

considering stability of potential placement with parent). Children need a safe and stable

home. See In re M.A.A., 2021 Tex. App. LEXIS 2315, at *61 (citing TEX. FAM. CODE ANN.

§ 263.307(a) for its position that prompt and permanent placement of child in safe

environment presumed to be in child’s best interest).

And from the record we see that the children have found safety and stability in the

home of their paternal grandparents. See In re T.A.G., No. 04-20-00565-CV, 2021 Tex.

App. LEXIS 3903, at *14 (Tex. App.—San Antonio May 19, 2021, no pet. h.) (mem. op.)

(considering in best-interest analysis that “the children were thriving” in their current

placement). The record evidence shows that the grandparents have dedicated a great

deal of time and energy to make certain these children have a stable and loving home.

According to a Department representative, the grandparents have gone “above and

beyond” the minimal medical care the children need and, consequently, the children are

thriving. One of Joseph’s doctors reported to the Department that Joseph has made

“great strides” in speech and physical therapy since being in his grandparents’ care and

making it to all his appointments. The grandparents also expressed their desire to adopt

the children and to ensure that the children are able to stay together with everything they

need.

We further note April’s participation in court-ordered services to address the drug

and alcohol abuse and parenting concerns. They generally were incomplete, though she

finished some. See M.B. v. Tex. Dep’t of Family & Protective Servs., No. 03-20-00533-

CV, 2021 Tex. App. LEXIS 2796, at *34 (Tex. App.—Austin Apr. 14, 2021, no pet.) (mem.

8 op.) (considering in best-interest analysis a mother’s refusal to avail herself of services or

programs that could help her).

Our analysis, like that of the trial court, must focus on the best interest of these

children. And, ultimately, the clear and convincing evidence weighs in favor of the trial

court’s finding that termination of April’s parental rights was in the best interest of the

three children. We overrule appellant’s sole issue and affirm the trial court’s judgment

terminating the parent-child relationship.

Per Curiam