in the Interest of K.B. and Z.B., Children

Opinion

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

No. 06-20-00074-CV

IN THE INTEREST OF K.B. AND Z.B., CHILDREN

On Appeal from the County Court at Law Bowie County, Texas Trial Court No. 19C1035-CCL

Before Morriss, C.J., Stevens and Carter,* JJ. Memorandum Opinion by Justice Stevens

________________________ *Jack Carter, Justice, Retired, Sitting by Assignment MEMORANDUM OPINION

Following a bench trial, the trial court terminated Mother’s parental rights to K.B. and

Z.B.1 on four grounds specified in the Texas Family Code—Section 161.001(b)(1), subsections

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

appeal, Mother challenges the sufficiency of the evidence as to grounds (D) and (E). Because we

find the evidence of these grounds is legally and factually sufficient, we affirm the trial court’s

judgment.

I. Standard of Review

“The natural right existing between parents and their children is of constitutional

dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to

make decisions concerning ‘the care, custody, and control of their children.” Id. (quoting Troxel

v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates

fundamental interests, a higher standard of proof—clear and convincing evidence—is required at

trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). “‘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.’” Id. (quoting TEX. FAM.

CODE ANN. § 101.007 (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). Based on this

standard, we are required to “engage in an exacting review of the entire record to determine if the

1 To protect the confidentiality of the children, we refer to appellant as Mother and to the children by initials. See TEX. R. APP. P. 9.8(b)(2). 2 evidence is . . . sufficient to support the termination of parental rights.” Id. (quoting A.B., 437

S.W.3d at 500).

“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 L.E.S., 471 S.W.3d 915, 920

(Tex. App.—Texarkana 2015, no pet.) (citing 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 trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a

reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have

reasonably disbelieved or the credibility of which reasonably could be doubted.” Id. (citing

J.P.B., 180 S.W.3d at 573).

“In our review of factual sufficiency, we give due consideration to evidence the trial

court could have reasonably found to be clear and convincing.” Id. (citing 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. (quoting H.R.M., 209 S.W.3d at 109 (quoting In re C.H., 89 S.W.3d 17,

25 (Tex. 2002)) (citing 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 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

3 belief or conviction, then the evidence is factually insufficient.” Id. (quoting J.F.C., 96 S.W.3d

at 266).

“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.’” Id. (quoting 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)) (citing 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.” Id. (quoting 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)).

“Only one predicate finding under Section 161.001[b](1) is necessary to support a

judgment of termination when there is also a finding that termination is in the child’s best

interest.” In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting

A.V., 113 S.W.3d at 362) (citing In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011,

no pet.)). Yet, because the trial court’s findings under grounds D and E “may have implications

for . . . parental rights to other children,” due process demands that we review the trial court’s

findings under each of those grounds. In re N.G., 577 S.W.3d 230, 234 (Tex. 2019)

(per curiam).

II. The Evidence at Trial

Tonya Baker, an investigator with the Department of Family and Protective Services

(Department), testified that the Department received an intake in July 2019 alleging neglectful

supervision and drug use by Mother. Mother had left the children with an unidentified male

4 relative but never returned for them. The relative eventually contacted the children’s great-

grandmother to pick them up. Although Mother was not there, Baker was able to locate the

children at the home of their great-grandmother. Mother had been there earlier and had

attempted to leave with the children but did not have car seats for them or a place for them to

stay. For reasons not apparent from the record, officers from the Nash Police Department (NPD)

were also present at the great-grandmother’s home and would not permit Mother to leave with

the children.

In an attempt to locate Mother, Baker went to the NPD. Officers there confirmed their

involvement and asked Baker to contact them if Mother tried to retrieve the children. Baker then

went to the Motel 6 to locate Mother, only to discover that Mother had checked out. 2 Baker was

unable to locate Mother but received word from the NPD at the end of the day that Mother had

returned to the great-grandmother’s house. When Baker arrived at the great-grandmother’s

house, it appeared to her that Mother was under the influence. Mother initially denied drug use,

but eventually admitted to Baker that she used marihuana and methamphetamine. Mother’s drug

test at the time of removal was positive for methamphetamine.

Following the issuance of an emergency removal order, the children were placed in a

foster home in Dallas.3 Although Baker was unaware of whether Mother used drugs in the

children’s presence, both children tested positive for methamphetamine at the time of removal.

Baker did not know who was caring for the children when they were exposed to

2 According to Baker, Mother had been living at the Motel 6 and was waiting for a friend to get her another room. 3 Z.B. was eleven months’ old at the time of removal, and K.B. was twenty-two months’ old. 5 methamphetamine. The option of a family placement for the children was not considered

because Mother indicated that all her family members used illegal substances.

Cherell Stuart, a Department conservatorship worker, provided Mother with a family plan

so that she could work services to lead to reunification with the children. The family plan

required completion of a drug assessment through the East Texas Council on Alcohol and Drug

Abuse (ETCADA), parenting classes, drug testing, and psychological counseling. Mother

completed her psychological evaluation but submitted to drug testing only once during the

pendency of the case. Although Mother’s October 2019 urinalysis was negative for the presence

of illicit drugs, her hair sample tested positive for amphetamine, methamphetamine, and

marihuana.4 She failed to complete the ETCADA drug assessment and did not complete

parenting classes. Mother did not maintain contact with the Department and did not make any

effort to complete her court-ordered services. Mother, likewise, demonstrated an inability to

provide the children with a safe and stable environment.

Jessica Barnett, a Court Appointed Special Advocates (CASA) volunteer, testified that,

despite her attempts to contact Mother, she never received a response. At the time of trial, the

children were thriving in their foster placement, and the foster parents wanted to adopt them.

4 Mother’s brief indicates that Mother underwent only one drug test. Yet, Baker testified, “[W]hen the emergency removal was recommended, she met us at the office, and she agreed to go ahead and drug test at that point.” The removal took place in July. Stuart, the conservatorship worker who was brought in after the emergency removal, testified that Mother “also did submit to one drug test, both a hair and UA on 10/4, and her hair was positive for amphetamines, methamphetamine, and marijuana, and her UA was negative.” This drug test was performed in conjunction with the family service plan. Even though the record might be somewhat ambiguous on this point, Mother nevertheless admitted to Baker at the time of removal that she used marihuana and methamphetamine. The subsequent October drug test showed that Mother continued to use methamphetamine and marihuana during the pendency of the case. 6 III. Sufficient Evidence Supports Termination Under Grounds D and E

Termination under ground D is proper when there is clear and convincing evidence that a

parent has “knowingly placed or knowingly allowed the child to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child.” TEX. FAM.

CODE ANN. § 161.001(b)(1)(D). “A child is endangered when the environment creates a

potential for danger that the parent is aware of, but disregards.” In re N.B., No. 06-12-00007-

CV, 2013 WL 1605457, at *9 (Tex. App.—Texarkana May 8, 2012, no pet.) (mem. op.).

“[S]ubsection (D) permits termination [of parental rights] based on a single act or omission [by

the parent].” In re L.C., 145 S.W.3d 790, 797 (Tex. App.—Texarkana 2004, no pet.); see In re

A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet. denied). “Inappropriate, abusive,

or unlawful conduct by a parent . . . can create an environment that endangers the physical and

emotional well-being of a child as required for termination under subsection (D).” In re C.J.B.,

No. 05-19-00165-CV, 2019 WL 3940987, at *6 (Tex. App.—Dallas Aug. 21, 2019, no pet.)

(mem. op.). “Endanger” means, for purposes of grounds D and E, “to expose to loss or injury; to

jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see L.E.S.,

471 S.W.3d at 923.

Termination under ground E is proper when there is clear and convincing evidence that

the parent “engaged in conduct . . . which endangers the physical or emotional well-being of the

child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). “It is not necessary that the conduct be

directed at the child or that the child actually suffer injury.” L.E.S., 471 S.W.3d at 923. “Under

subsection (E), it is sufficient that the child’s well-being is jeopardized or exposed to loss or

7 injury.” Id. (citing Boyd, 727 S.W.2d at 533; N.S.G., 235 S.W.3d at 367). “Further, 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.’” Id. (quoting Perez v.

Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004,

no pet.) (citing In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.))).

Because they are interrelated, we consolidate our examination of grounds D and E.

The record plainly demonstrates that Mother struggled with drug addiction. She admitted

to using marihuana and tested positive for methamphetamine at the time the Department

removed the children from her care. Mother again tested positive for methamphetamine three

months after the removal and did not submit to further drug testing. She refused to participate in

an ECTADA drug assessment and showed no interest in working services in order to be reunited

with her children. “‘Drug addiction and its effect on a parent’s life and ability to parent may

establish an endangering course of conduct’ by a parent sufficient to support a petition to

terminate parental rights.” In re O.R.F., 417 S.W.3d 24, 38 (Tex. App.—Texarkana 2013, pet.

denied). Mother’s failure to “remain drug-free while under the Department’s supervision will

support a finding of endangering conduct under subsection (E) even if there is no direct evidence

that the parent’s drug use actually injured the child” “[b]ecause it exposes the child to the

possibility that the parent may be impaired or imprisoned.” Id. at 39 (quoting Walker v. Tex.

Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.]

2009, pet. denied)). “Moreover, illegal drug use by a parent likewise supports the conclusion

that the children’s surroundings endanger their physical or emotional well-being.” L.E.S., 471

8 S.W.3d at 925 (citing In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.));

see In re N.B., No. 06-12-00007-CV, 2013 WL 1605457, at *9 (Tex. App.—Texarkana May 8,

2012, no pet.) (mem. op.). “Indeed, the effect of drug use on a parent’s life and ‘ability to parent

may establish and endangering course of conduct.’” In re K.D., No. 06-17-00068-CV, 2017 WL

5504407, at *5 (Tex. App.—Texarkana Nov. 17, 2017, no pet.) (quoting In re J.L.B., 349 S.W.3d

836, 848 (Tex. App.—Texarkana 2011, no pet.)). In addition to the evidence showing that

Mother struggled with a drug addiction and used methamphetamine after the Department’s

intervention, the evidence also indicates both children tested positive for methamphetamine at

the time of their removal. And, although Mother claimed that all of her relatives used illicit

drugs, she left the children in the care of an unidentified male relative.

After having considered the entire record, we conclude that the evidence is legally and

factually sufficient to support termination of Mother’s parental rights under grounds D and E.5

5 Mother argues that this case is much like In re J.L.G., No. 06-16-00087-CV, 2017 WL 1290895 (Tex. App.— Texarkana Apr. 6, 2017, no pet.) (mem. op.), in which we concluded that the evidence was legally insufficient to support the trial court’s findings under grounds (D) and (E). In that case, Father used methamphetamine once with Mother and tested positive for that substance once in a previous CPS case. However, there was “no evidence that [Father] used methamphetamine more than once . . . [and] there [was] no evidence of [Father’s] history of drug use or that he ha[d] used drugs since using them with [Mother] that one time.” There was likewise “no evidence that [Father] occupied a residence with [Mother] or J.L.G. or that he used illegal drugs in the presence of J.L.G.” Id. at *8. The facts here are different in that Mother was the children’s primary caregiver, Mother was using methamphetamine at the time of removal, and the children had methamphetamine in their system at the time of removal. 9 IV. Conclusion

We affirm the trial court’s judgment.

Scott E. Stevens Justice

Date Submitted: December 28, 2020 Date Decided: December 29, 2020