in the Interest of K.M., I.D., and D.G., Children

• Court: Court of Appeals of Texas
• Decided: June 29, 2016
• Docket: 07-16-00120-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-16-00120-CV

IN THE INTEREST OF K.M., I.D., AND D.G., CHILDREN

On Appeal from the 100th District Court Childress County, Texas Trial Court No. 10416, Honorable Stuart Messer, Presiding

June 29, 2016

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

E.G., the mother of K.M., I.D., and D.G.,1 appeals the trial court’s order

terminating her parental rights to her children. We will affirm the order of the trial court.

Background

Through one issue, E.G. challenges the sufficiency of the evidence to support the

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

1 To protect the children's privacy, we will refer to the mother and the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8(b). three children. E.G. does not otherwise challenge the grounds under which the trial

court terminated her parental rights.

At the time of the final hearing, E.G. was 31 years old, K.M. was 9 years old, I.D.

was 4, and D.G. was one-and-a-half. The children were removed from E.G.’s care in

August 2014 after I.D. tested positive for methamphetamine. At the time of her birth in

July 2014, D.G. tested positive for the same substance and E.G. admitted to using

methamphetamine while pregnant with D.G.2 Appellee, the Texas Department of

Family and Protective Services, filed a petition seeking removal of the children from

E.G.’s care following the positive drug tests and after noting concerns over her

neglectful care of the children. K.M. and I.D. were placed in a foster home together and

D.G. was placed in a separate foster home. K.M. later was placed in a residential

treatment facility where he remained at the time of the final hearing. I.D. was placed in

another foster home.

A final hearing was held in February 2016. At the conclusion of the hearing, the

trial court granted the Department’s request for termination of E.G.’s parental rights to

her three children.3 E.G. appealed, challenging the trial court’s finding that termination

of her parental rights was in the children’s best interest.

2 K.M.’s drug test was negative. 3 The parental rights of the children’s three fathers also were terminated. None of the fathers have appealed.

2 Analysis

The Constitution protects “[t]he fundamental liberty interest of natural parents in

the care, custody, and management” of their children. Santosky v. Kramer, 455 U.S.

745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Holick v. Smith, 685 S.W.2d 18, 20

(Tex. 1985). Parental rights, however, are not absolute, and courts have recognized it is

essential that the emotional and physical interests of a child not be sacrificed merely to

preserve the parental 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. 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). Clear and convincing

evidence is that measure or degree of proof which 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); In re C.H., 89 S.W.3d at 25-26.

Under the legal sufficiency analysis, we examine all of the evidence in the light

most favorable to the challenged finding, assuming the “factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could do so.” In re J.F.C., 96 S.W.3d

256, 266 (Tex. 2002). We disregard all contrary evidence the factfinder could have

reasonably disbelieved or found incredible. Id. However, we take into account

undisputed facts that do not support the finding, so as not to “skew the analysis of

whether there is clear and convincing evidence.” Id. If the record presents credibility

issues, we must defer to the factfinder's determinations provided they are not

unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

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

the evidence the factfinder could reasonably have found to be clear and convincing. In

re C.H., 89 S.W.3d at 25. We determine whether the evidence is such that a factfinder

could reasonably form a firm belief or conviction about the truth of the Department's

allegations. Id. In doing so we consider whether disputed evidence is such that a

reasonable factfinder could not have resolved that disputed evidence in favor of its

finding. Id. 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. In re J.F.C., 96 S.W.3d at 266.

The Family Code permits a trial court to terminate parental rights if the

Department proves by clear and convincing evidence that the parent committed an

action prohibited under section 161.001(b)(1) and termination is in the children’s best

interest. TEX. FAM. CODE ANN. § 161.001(b)(2) (West 2015); Holley v. Adams, 544

S.W.2d 367, 370 (Tex. 1976). Only one predicate finding under section 161.001(b)(1) is

necessary to support an order of termination when there is also a finding that

termination is in a child's best interests. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In

re T.N., 180 S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.). Thus a termination

order may be affirmed if it is supported by legally and factually sufficient evidence of any

statutory ground on which the trial court relied for termination, and the best interest

finding. In re E.A.G., 373 S.W.3d 129, 141 (Tex. App.—San Antonio 2012, pet. denied).

There is a strong presumption that keeping children with a parent is in the

children’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). But prompt and

4 permanent placement of children in a safe environment is also presumed to be in their

best interest. TEX. FAM. CODE ANN. § 263.307(a) (West 2008). The best interest analysis

evaluates the best interest of the child, not that of the parent. In the Interest of A.C.B.,

198 S.W.3d 294, 298 (Tex. App.—Amarillo 2006, no pet.). The following factors are

among those the court may consider in determining the best interest of each child: (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; (D) the

parental abilities of the individuals seeking custody; (E) the programs available to assist

these individuals to promote the best interests 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. Holley, 544 S.W.2d at 371-72.

As noted, E.G. has not challenged the court’s predicate termination findings

under Family Code subsections 161.001(b)(1)(E), (O) and (P). Unchallenged predicate

findings are binding on the appellate court. In re E.A.F., 424 S.W.3d 742, 750 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied); see IKB Indus. (Nigeria) Ltd. v. Pro-Line

Corp., 938 S.W.2d 440, 445 (Tex. 1997). These unchallenged predicate findings can

therefore support the best interest finding. See In re C.H., 89 S.W.3d at 28 (holding that

the same evidence may be probative of both section 161.001 predicate grounds and

best interest).

The primary concern in this case is E.G.’s history of drug use and relapse. E.G.

testified she began using marijuana and drinking alcohol as a teenager, started using

5 methamphetamine when she was 20 or 21 and used “heavily” in 2007. E.G. testified

she again started using the drug when she was about six months pregnant with D.G.

She also breastfed D.G. on at least one occasion after using methamphetamine. E.G.

denied using drugs while in the presence of her children and told the court she did so

when the children were in bed or at school. She also claimed, however, she was “very

observant” of her children while high on methamphetamine, a statement the trial court

could have taken as indicative of her use in their presence. E.G.’s history of

endangering and injurious conduct toward her children weighs in favor of the trial court’s

finding.

While E.G. testified she had been sober for 130 days by the day of the hearing,

evidence also showed she had relapsed more than once, even after completing

inpatient treatment and intensive outpatient treatment. E.G. tested positive for

methamphetamine during the pendency of the case and admitted to using the drug. A

licensed chemical dependency counselor testified E.G. has a substance abuse problem,

and E.G. acknowledged she is “an addict.” The record also shows E.G. was arrested in

May 2015 but she failed to report the arrest. The trial court could have determined her

inability to remain sober negatively impacted her ability to care for her children. This

evidence weighs in favor of the trial court’s finding that termination of E.G.’s parental

rights to her children was in the best interest of each child. See In re J.O.A., 283 S.W.3d

336, 346 (Tex. 2009) (a trial court may consider a parent’s history of drug use and

irresponsible choices when making a determination to terminate a parent’s rights to her

children).

6 E.G. also acknowledged her poor decisions with regard to her romantic

relationships. She admitted K.M. had called five different men “dad” during his lifetime.

She further acknowledged she did not inquire into the criminal history of any of the men

she dated. She testified her first boyfriend was physically abusive and that K.M.’s father

had been verbally abusive to her. She also testified she was afraid of I.D.’s father and

stated she knew before she became pregnant with I.D. that the father had been in

prison for murder. She also told the court K.M. witnessed her physical fight with D.G.’s

father. The man grabbed her “by my throat and slammed me on the ground, during

which time my arm was burnt on the wall heater.” She was newly pregnant with D.G. at

that time, but may not have known she was pregnant. E.G.’s past behavior in

relationships, leading to unstable circumstances wholly inconsistent with effective child-

rearing, weighs in favor of the trial court’s best-interest finding.

The court heard other evidence bearing unfavorably on E.G.’s parenting abilities.

As noted, in 2014, two of the children, I.D. and D.G., tested positive for

methamphetamine in their systems. The record also shows all three children exhibited

behavioral and developmental problems, particularly the two older children. K.M.

exhibited “hoarding” behavior with food and belongings and was “parentified,”

characteristics a counselor testified were indicators of neglect. E.G. admitted to a

Department employee that K.M. had not learned to clean himself after using the

bathroom and was unable to tie his shoes. Both K.M. and I.D. were diagnosed with

“attention deficit disorder combined type and adjustment disorder with mixed

disturbance of emotions and conduct.” I.D. was delayed in “psychological functioning,

7 behavioral functioning, social functioning, [and] educational functioning,” with skills

closer to those of a two- or three-year-old.

By the time of the final hearing, K.M. was living in a residential treatment facility.

The Department was evaluating his potential placement with a paternal uncle. E.G.

testified she had “noticed a change” in K.M. during his residence in the facility, agreed it

was a “positive” change, and said he should remain there until he was ready to be

discharged. I.D. was living in a foster home. At the time of the hearing, the Department

was investigating the failed home study of I.D.’s grandparents, which apparently failed

only for medical reasons. I.D. was receiving speech therapy and attending pre-

kindergarten. I.D.’s father testified at the hearing. He testified he never saw E.G.

smoke methamphetamine and she never told him she did. The ad litem for the children

told the court K.M. and I.D. desired to continue to see their mother.4

Although D.G. was too young at the time of the final hearing to express her

desires, the trial court could have inferred those desires from the evidence presented at

the hearing. In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014,

pet. denied). D.G. was living with foster parents where she had lived from the age of

eight weeks. The foster parents testified at the hearing, telling the court they had been

married for ten years, were educated, employed, and had two biological children, aged

six and eight years. All three children were attending programs at a Christian school.

The foster mother testified D.G. had initially been “stiff and inflexible” but had overcome

4 The ad litem explained to the court that both boys “expressed a desire to continue contact with their mom” and “while they understand that they are not in a position where they could go home, they do want contact with their mother.” The boys’ counselor told the court that neither boy mentioned their biological families and when K.M. talked about family, he talked only about the foster families with whom he had lived.

8 those issues. Both foster parents testified they wish to adopt D.G. and that D.G.

considered them to be her parents. A doctor testified it was in D.G.’s best interest that

the foster parents adopt D.G. The foster father testified they had a cordial relationship

with E.G. and did not oppose continued contact between D.G. and E.G.

The trial court could have taken the evidence of the needs of each child and the

manner in which those needs were being met as significant evidence that termination of

E.G.’s parental rights was in the best interest of each of the three.

As her appellate brief emphasizes, the record contains some evidence weighing

against the trial court’s best-interest finding. However, evidence cannot be read in

isolation; it must be read in the context of the entire record. In the Interest of K.C.F.,

No. 01-13-01078-CV, 2014 Tex. App. LEXIS 6131, at *45 (Tex. App.—Houston [1st

Dist.] June 5, 2014, no pet.) (mem. op.). The record shows E.G. loves her children and

her visits with the children went well. D.G.’s foster mother testified she “absolutely”

believes E.G. loves D.G. E.G. admitted to her mistakes with them, reiterated her

sobriety, and testified her children tell her they want to come home “all the time.” By the

time of the final hearing, E.G. had secured a suitable home and a vehicle and had been

employed for six months. E.G. also completed a psychological evaluation, attended five

parenting classes and completed two weeks of homework. But she failed to complete

her remaining services under the court-ordered service plan. She provided no detailed

plans for caring for her children in the event of their return to her care.

The children’s ad litem told the court termination was in their best interest, and

has filed a brief in this court urging affirmance of the court’s judgment.

9 After viewing all of the evidence in the light most favorable to the finding, we

conclude that the evidence was sufficiently clear and convincing that a reasonable fact

finder could have formed a firm belief or conviction that termination of the parent-child

relationship between E.G. and her children was in the children's best interest. We

further conclude that, viewed in light of the entire record, any disputed evidence could

have been reconciled in favor of the trial court's finding or was not so significant as to

preclude the trial court from forming a firm belief or conviction that termination was in

their best interest. Thus, we find that the evidence was legally and factually sufficient to

support the best interest finding.

We resolve E.G.’s appellate issue against her and affirm the judgment of the trial

court.

James T. Campbell Justice