in the Interest of L.P., I.B., P.S.S.-D., K.D., S.J., and S.J., Children

• Court: Court of Appeals of Texas
• Decided: September 20, 2017
• Docket: 07-17-00155-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00155-CV

IN THE INTEREST OF L.P., I.B., P.S.S.-D., K.D., S.J., AND S.J., CHILDREN

On Appeal from the 99th District Court Lubbock County, Texas Trial Court No. 2015-518,584, Honorable Kara L. Darnell, Presiding

September 20, 2017

MEMORANDUM OPINION Before CAMPBELL and PIRTLE and PARKER, JJ.

Appellant, A.M.,1 appeals the trial court’s Order terminating her parental rights to

five of her six children2 who were the subjects of this suit.3 We will affirm.

1 To protect the children’s privacy, we will refer to appellant and the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b). 2 References in this opinion to termination of A.M.’s parental rights to the “children” will refer to the five children to whom her rights were terminated. 3 The trial court found that termination of A.M.’s parental rights to L.P. would not be in L.P.’s best interest, so the trial court did not terminate A.M.’s parental rights to L.P. However, the trial court also found that appointment of A.M. as managing conservator of L.P. would not be in L.P.’s best interest. Finding that A.M. having access to or possession of L.P. would endanger the physical or emotional welfare of the child, the trial court appointed the Department sole managing conservator of L.P. and denied A.M. access to or possession of L.P. A.M. does not appeal these rulings. Factual and Procedural Background

On December 8, 2015, Lubbock Police were dispatched to a domestic assault at

the home of A.M. A.M. and her fifteen-year-old son, L.P., had gotten into an argument

that escalated until A.M. used a heated clothing iron to hit L.P. in the head. A.M.

indicated that L.P. hit her first and that she “blacked out” and cannot remember striking

L.P. The children informed investigators that, in addition to hitting L.P. in the head, A.M.

tried to burn L.P.’s stomach with the iron and hit L.P. with a chair. A.M. was arrested

and charged with aggravated assault domestic violence. The Department of Family and

Protective Services determined that there was “reason to believe” that A.M. had

physically abused and been neglectful in her supervision of the children. The children

were removed and the Department was named temporary managing conservator of the

children.

The Department has investigated A.M. on multiple occasions over a span of

about eleven years. One of these investigations arose out of concerns for A.M.’s

mental health. However, A.M. refused to release information regarding her mental

health diagnosis. A.M. stated that she was given medication in relation to her mental

health but she chose not to take it. A.M. also has an extensive criminal history that

includes convictions for assault, interference with the duties of a public servant, assault

domestic violence, and theft.

During the investigation of this case, three of the children made outcries that

A.M. had physically abused the children prior to the December 8 incident that led to this

case. In addition, a former boyfriend of A.M. testified that she would physically abuse

the children by spanking them for too long and that she would emotionally abuse the

2 children by saying “ugly things” to them and cursing at them regularly. He also testified

that A.M. physically assaulted him on multiple occasions with some assaults occurring

in front of the children. In addition, another boyfriend physically assaulted A.M. in front

of the children. Nonetheless, A.M. and this boyfriend remain in a relationship.

Soon after the Department was named temporary managing conservator of the

children, the trial court signed an “Order for Actions Necessary for Return of Child(ren),”

which inter alia ordered A.M. to complete the Department’s plan of service, refrain from

using any illegal drugs, submit to drug and alcohol testing requested by the Department,

and avoid criminal conduct. In a supplemental order, A.M. was required to inter alia

complete a drug and alcohol treatment program, attend AA or NA meetings three times

per week, complete specific parenting classes, and obtain a mental health screening.

While A.M. claims that she completed the services she was required to complete, the

record reflects that there were many services that she did not complete. Further, A.M.

twice tested positive for illegal drugs with one of these positive tests occurring after she

completed drug education classes.

In addition, while this case was pending, A.M. repeatedly disrupted the children’s

placements. A.M. would contact placements for the children and make spurious claims

against people at the placement and/or threaten people at the placement. In many

instances, this led to the placements refusing to continue to foster the children.

However, even with these regular disruptions, the children are doing better under the

Department’s conservatorship. After initially trying to reunite the children with A.M., by

the time of trial, the Department’s plans were to terminate A.M.’s parental rights to the

3 children and have the children adopted. In fact, the foster home to three of the children

at the time of trial might be interested in adopting all of the children together.

A.M. presents a single issue by her appeal. She contends that the evidence

presented at trial was insufficient to support the termination of A.M.’s parental rights

because she completed the actions required by the Department and termination is not

in the children’s best interest.

Standard of Review

A parent’s right to “the companionship, care, custody, and management” of her

children is a constitutional interest “far more precious than any property right.” Santosky

v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A termination

decree is complete, final, irrevocable, and divests for all time that natural right as well as

all legal rights, privileges, duties, and powers with respect to each other except for the

child’s right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). As such, the

evidence must be clear and convincing to support an involuntary termination of parental

rights. Id. We must strictly scrutinize termination proceedings. Id. at 20-21.

Under Texas law, to terminate parental rights, it must be proven by clear and

convincing evidence that a parent has committed one or more of the acts and/or

omissions identified in section 161.001(b)(1),4 and that termination is in the child’s best

interest. See TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2016).5 Clear and

convincing evidence is the degree of proof necessary to produce in the mind of the trier

4 We will refer to the acts and/or omissions identified by section 161.001(b)(1) as “statutory predicate grounds.” 5 Further reference to provisions of the Texas Family Code will be by reference to “section ___” or “§ ___.” 4 of fact a firm belief or conviction as to the truth of the allegations sought to be

established. § 101.007 (West 2014); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31

(Tex. 1994). Only one statutory predicate ground is required to support termination

when there is also a finding that termination is in the child’s best interest. In re A.V.,

113 S.W.3d 355, 362 (Tex. 2003); In re K.C.B., 280 S.W.3d 888, 894-95 (Tex. App.—

Amarillo 2009, pet. denied).

In conducting a legal sufficiency challenge, we credit evidence that supports the

verdict if a reasonable factfinder could have done so, and disregard contrary evidence

unless a reasonable factfinder could not have done so. In re K.M.L., 443 S.W.3d 101,

112-13 (Tex. 2014). However, undisputed facts that do not support the verdict should

not be disregarded in determining whether there is clear and convincing evidence. Id.

at 113. Evidence that does more than raise surmise or suspicion is not sufficient unless

that evidence is capable of producing a firm belief or conviction that the allegation is

true. Id. If, after conducting a legal sufficiency review, we determine that no reasonable

factfinder could have formed a firm belief or conviction that the matter that must be

proven was true, then the evidence is legally insufficient and we must reverse. Id.

(citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).

In a review of the factual sufficiency of the evidence, we must give due

consideration to evidence that the factfinder could reasonably have found to be clear

and convincing. In re J.F.C., 96 S.W.3d at 266 (citing In re C.H., 89 S.W.3d 17, 25

(Tex. 2002)). We are to 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. We also consider whether disputed evidence is such that a reasonable

5 factfinder could not have resolved the dispute 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.” Id.

Analysis

By her sole issue, A.M. challenges the sufficiency of the evidence to support the

termination of her parental rights to the children as to both establishment of the statutory

predicate grounds and the best interest of the children.

Statutory Predicate Grounds

In her brief, A.M. challenges the sufficiency of the evidence supporting the trial

court’s finding that she failed to comply with the provisions of a court order that

specifically established the actions necessary for her to obtain the return of her children

who had been in the temporary managing conservatorship of the Department for at

least nine months after having been removed for abuse or neglect. See

§ 161.001(b)(1)(O). A.M., however, does not challenge the trial court’s findings that she

knowingly placed or allowed the children to remain in conditions or surroundings which

endangered their physical or emotional well-being, and engaged in conduct or

knowingly placed the children with persons who engaged in conduct which endangered

the physical or emotional well-being of the children. See § 161.001(b)(1)(D), (E). As

previously mentioned, only one predicate finding under section 161.001(b)(1) is required

to support termination. In re A.V., 113 S.W.3d at 362; In re K.C.B., 280 S.W.3d at 894-

95. Because A.M. fails to challenge the sufficiency of the evidence supporting the

findings under section 161.001(b)(1)(D) and (E), she has waived any complaint about 6 the sufficiency of the evidence supporting these findings. In re A.V., 113 S.W.3d at 362-

63; Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 102-03 (Tex.

App.—Houston [1st Dist.] 2006, no pet.). Because only one statutory predicate ground

is necessary under section 161.001(b), we need not address A.M.’s challenge to the

sufficiency of the evidence supporting the trial court’s finding under section

161.001(b)(1)(O). In re A.V., 113 S.W.3d at 362; Toliver, 217 S.W.3d at 102-03.

Best Interest of the Children

A.M. also challenges the sufficiency of the evidence supporting the determination

that termination of her parental rights to the children is in the children’s best interest.

The Department was required to prove by clear and convincing evidence that

termination of A.M.’s parental rights was in the children’s best interest. § 161.001(b)(2);

In re K.M.L., 443 S.W.3d at 116. In conducting a review of the sufficiency of the

evidence to support a trial court’s best interest determination, we must assess whether

the evidence is such that a factfinder could have formed a firm belief or conviction that

termination is in the children’s best interest. See In re K.M.L., 443 S.W.3d at 113 (legal

sufficiency standard); In re J.F.C., 96 S.W.3d at 266 (factual sufficiency standard).

We start our review with a strong presumption that preserving the parent-child

relationship is in the best interest of the children. In re R.R., 209 S.W.3d 112, 116 (Tex.

2006). We also strive to achieve prompt and permanent placement of the children in a

safe environment as this is also presumed to be in the children’s best interest. See

§ 263.307(a) (West Supp. 2016). The Supreme Court has set out a non-exhaustive list

of factors to consider when determining the best interest of a child. See Holley v.

Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors include: (1) the desires of

7 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 individual seeking custody; (5) the programs available to assist the

individual to promote the best interest of the child; (6) the plans for the child by the

individual or agency seeking custody; (7) the stability of the home or proposed

placement; (8) the acts or omissions of the parent that 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.

Evidence that supports one or more statutory predicate grounds for termination

may be probative evidence that termination is in the child’s best interest. See In re

C.H., 89 S.W.3d at 28; In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013). In addition to

direct evidence, the best interest analysis may consider circumstantial evidence,

subjective factors, and the totality of the evidence. In re N.R.T., 338 S.W.3d 667, 677

(Tex. App.—Amarillo 2011, no pet.). A child’s need for permanence through the

establishment of a “stable, permanent home” has been recognized as the paramount

consideration in determining best interest. See § 263.307(a); In re K.C., 219 S.W.3d

924, 931 (Tex. App.—Dallas 2007, no pet.).

We begin our analysis of the children’s best interest with an acknowledgement

that A.M. has not challenged the trial court’s findings under section 161.001(b)(1)(D)

and (E). This is significant since evidence proving one or more of the statutory

predicate grounds for termination is probative that termination is in the best interest of

the children. In re C.H., 89 S.W.3d at 28.

8 The evidence presented in this case establishes the following facts:

1. The children involved in this case were removed after A.M. struck one of her children in the head with a hot clothing iron. At the time of trial, A.M. was facing charges for aggravated assault domestic violence as a result of this incident.

2. A.M. has been physically and emotionally abusive toward the children on multiple occasions.

3. A.M. has exposed the children to multiple domestic assaults. In some instances, A.M. was the assailant and in others she was the victim.

4. A.M. has an extensive criminal history, including convictions for assault, interference with a public servant, assault domestic violence, and theft.

5. A.M. has been diagnosed with mental health issues which require medication. However, she claims that she does not take the prescribed medication.

6. A.M. tested positive for using controlled substances during the pendency of this case, including a positive test for cocaine after completing drug education classes.

7. A.M. has had repeated confrontations with Department caseworkers and visitation monitors. She also disrupted the children’s placements during the pendency of the case, which caused the children to be moved on several occasions.

We will consider these facts in addressing the Holley factors to determine whether

termination of A.M.’s parental rights is in the children’s best interest.

Some of the children expressed a desire to return to A.M., but some of them did

not. While this factor weighs against termination as to those children that expressed a

desire to return to A.M., we must consider the overall circumstances of the children.

Although a child’s love of his natural parents is a very important consideration in determining the best interests of the child, it cannot override or outweigh the overwhelming and undisputed evidence showing that the parents placed or allowed the child to remain in conditions, and engaged in conduct or placed the child with persons who engaged in conduct, which endangers the physical and emotional well-being of the child. The child’s love of his parents cannot compensate for the lack of an

9 opportunity to grow up in a normal and safe way equipped to live a normal, productive, and satisfying life.

In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.).

The findings that A.M. knowingly placed or allowed the children to remain in

conditions or surroundings which endangered their physical or emotional well-being,

and engaged in conduct or knowingly placed the children with persons who engaged in

conduct which endangered the physical or emotional well-being of the children support

the proposition that termination is in the children’s best interest under the second and

third Holley factors. In re C.H., 89 S.W.3d at 28; In re E.C.R., 402 S.W.3d at 249. We

also consider A.M.’s continued drug use during the pendency of the case as further

proof that A.M. endangered the children. See In re F.A.R., No. 11-04-00014-CV, 2005

Tex. App. LEXIS 234, at *11-12 (Tex. App.—Eastland Jan. 13, 2005, no pet.) (mem.

op.) (parent’s continued drug use demonstrates an “inability to provide for [the

children’s] emotional and physical needs”). Because A.M. has exposed the children to

emotional and physical abuse, their emotional needs will be greater than other children.

Finally, intentional criminal activity which exposes the parent to incarceration, such as

A.M.’s continued drug use and pending assault charge, is relevant evidence that tends

to establish a course of conduct that endangers the emotional and physical well-being

of the children. In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.) (per

curiam). For these reasons, the second and third Holley factors strongly support

termination.

While A.M. contends that the Department’s caseworker testified that A.M.

completed the services required for return of the children, the record reflects that she

did not complete several court-ordered services. By way of example, A.M. did not

10 attend AA and NA meetings as required, complete specified parenting classes, attend

individual counseling until completion, obtain a mental health evaluation, or complete a

drug and alcohol assessment after her positive drug test in January 2017. Further, the

evidence establishes that some of the services that A.M. completed were not effective

in promoting the children’s best interest. For example, A.M. tested positive for cocaine

after she had completed drug education classes. Obviously, A.M.’s physical and

emotional abuse of the children indicates that her parental abilities are unacceptable.

Additionally, A.M.’s repeated disruptions of the children’s placements are indicative that

A.M. is unwilling to place the children’s best interest ahead of her own desires.

Consequently, the fourth and fifth Holley factors strongly support termination.

The Department’s plan for the children is termination of A.M.’s parental rights to

enable the children to be adopted. However, following termination of A.M.’s parental

rights, the Department plans to have S.J.-1’s father be appointed sole managing

conservator of S.J.-1. Three of the children were placed in a foster home days before

trial with the other two children to join them a couple weeks after the trial. This foster

placement might be willing to be a permanent placement for all five children. The

Department has a plan to ensure that S.J.-1 will be able to visit his siblings regularly.

When the Department’s plans for the children are compared to the lack of stability and

nurture A.M. is capable of providing, the sixth and seventh Holley factors weigh heavily

in favor of termination.

A.M. has committed numerous acts that indicate that her existing relationship

with the children is not proper. A.M. assaulted L.P. with a heated clothing iron after

physically and emotionally abusing the children in the past. She exposed the children to

11 domestic violence on multiple occasions. She has an extensive criminal history,

including pending assault domestic violence charges. A.M. failed to complete her court-

ordered services, and tested positive for drugs on two occasions during the pendency of

the case. She also disrupted the children’s placements causing the children to have to

be moved. Based on all of this, the eighth Holley factor strongly favors termination.

Finally, other than denying that many of these events occurred, A.M. does not

offer any excuses for her actions or omissions.

When we consider all of the Holley factors in light of the entire record, we

conclude that a reasonable factfinder would have formed a firm belief or conviction that

termination of A.M.’s parental rights to the children is in the children’s best interest. See

In re K.M.L., 443 S.W.3d at 113; In re J.F.C., 96 S.W.3d at 266.

Conclusion

Having determined that the evidence is both legally and factually sufficient to

support the trial court’s decision to terminate A.M.’s parental rights to the children, we

affirm the judgment of the trial court.

Judy C. Parker Justice