in the Interest of L.S., C.S., A.S.R., and A.S.R.

• Court: Court of Appeals of Texas
• Decided: July 20, 2017
• Docket: 09-17-00065-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-17-00065-CV _________________

IN THE INTEREST OF L.S., C.S., A.S.R., AND A.S.R.

________________________________________________________________________

On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. F-226,375 ________________________________________________________________________

MEMORANDUM OPINION

The trial court terminated all parental rights to the minor children, L.S., C.S.,

A.S.R.1, and A.S.R.2.1 Appellant T.S., the mother of all four children, appeals the

termination.2 In six points of error, T.S. (“Mother”) contends that the evidence was

legally and factually insufficient to support termination of her parental rights under

1 To protect the identity of the minors, we have not used the names of the children, parents, or other family members. See Tex. R. App. P. 9.8(a), (b). 2 Neither father of the respective children has appealed the termination of his parental rights. 1 any of the statutory predicate grounds listed in the termination order, or to support

that termination was in the best interest of the children. We affirm.

I. Background

The Department of Family and Protective Services (the “Department”) has

been involved with Mother several times over the years preceding this suit as a result

of Mother’s drug use. Mother began using drugs when she was sixteen years old.

She used the drug PCP, in September 2009, while she was pregnant with her oldest

child, L.S. The Department later became involved with Mother as a result of her

testing positive for PCP while caring for L.S. Mother also used drugs through her

entire pregnancy with her next child, C.S., and the Department became involved

again when that child’s urine and meconium tested positive for PCP at birth in

December 2014. The Department became involved with Mother again in November

2015, when she gave birth to twins, A.R.S.1 and A.R.S.2, both of whom tested

positive for controlled substances in urine and meconium. As a result of this, the

Department asked that all of the children be placed with family members, and all

four were placed with their maternal grandmother, who was given a power of

attorney over them. The Department then closed its investigation in December 2015.

In February 2016, the Department received a new report that Mother had

unsupervised possession of all four children. Upon investigation, the Department

2 confirmed that, despite knowledge of Mother’s extensive drug problem, the maternal

grandmother had allowed the children back into Mother’s care while the

grandmother went out of town for a family emergency. The Department sought

removal of the children after Mother appeared to be under the influence of drugs at

a Family Team Meeting and tested positive for PCP, marijuana, and cocaine. The

trial court entered an ex parte order for protection naming the Department as the

temporary sole managing conservator of the children, and then continued the

Department as the temporary sole managing conservator after a contested adversary

hearing. The children were eventually placed with Mother’s stepfather after

spending the first few months of the case in foster care.

The Department developed family service plans for each parent, which set

forth the various tasks required of each parent in order to obtain the return of the

children, and those service plans were approved and made orders of the trial court.

In April 2016, Mother was arrested and charged with possession of a controlled

substance, for which she eventually received deferred adjudication. Through the

pendency of the case, Mother completed a parenting class and worked some of the

services on her family service plan, but she did not complete the service plan. She

also continued to use drugs, testing positive on at least nine occasions between the

time of the investigation and the date of trial.

3 On January 5, 2017, the Court began the bench trial in this cause. At that time,

the parental rights of both fathers were terminated, and the court granted a

continuance for Mother. Mother admitted to using drugs after the hearing and tested

positive on February 7, 2017, and again on February 21, 2017. The court continued

the proceeding against Mother on February 23, 2017. At the conclusion of the

hearing, the court terminated Mother’s parental rights after finding by clear and

convincing evidence that Mother had:

knowingly placed or knowingly allowed the child(ren) to remain in conditions or surroundings which endanger the physical or emotional well-being of the child(ren);

engaged in conduct or knowingly placed the child(ren) with persons who engaged in conduct which endangers the physical or emotional well-being of the child(ren);

...

failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child(ren) who has/have been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child(ren)’s removal from the parent under Chapter 262 for the abuse or neglect of the child(ren);

used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the chi1d(ren), and (1) failed to complete a court-ordered substance abuse treatment program; or (2) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance;

4 [and] . . .

been the cause of the child(ren) being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription, as defined by § 261.001, Texas Family Code.

The court further found by clear and convincing evidence that termination of

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

II. Standard of Review

The Family Code provides that parental rights may be terminated if the parent

has committed an act prohibited by section 161.001(b)(1) and that termination is in

the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp.

2016). Termination of parental rights is a serious matter, as it divests both “parent

and child of all legal rights, privileges, duties, and powers normally existing between

them, except the child’s right to inherit.” In re D.D.G., 423 S.W.3d 468, 472 (Tex.

App.—Fort Worth 2014, no pet). Because of the constitutional magnitude of parental

rights, and the severity and permanency of proceedings to terminate rights, the

burden of proof at trial in such proceedings is heightened to the clear and convincing

standard. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d

528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). This standard is defined

as “the measure or 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.”

5 Tex. Fam. Code Ann. § 101.007 (West 2014). This heightened burden of proof

required at trial results in a heightened standard of review on appeal. In re D.R.A.,

374 S.W.3d at 531.

In this case, Mother challenges both the legal and factual sufficiency of the

trial court’s findings. There is a fine distinction in how evidence is reviewed under

the legal and factual sufficiency standards in a parental termination case. In re

J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Under the heightened legal sufficiency

standard, we assess all the evidence in the light most favorable to the court’s finding

to determine whether a reasonable trier of fact could have formed “a firm belief or

conviction as to the truth of the allegations sought to be established.” Id. at 264

(quoting Tex. Fam. Code § 101.007). In giving appropriate deference to the court’s

findings, we “must assume that the factfinder resolved disputed facts in favor of its

finding if a reasonable factfinder could do so” and “disregard all evidence that a

reasonable factfinder could have disbelieved or found to have been incredible.” Id.

at 266. Under the factual sufficiency standard, we “consider whether disputed

evidence is such that a reasonable factfinder could not have resolved that disputed

evidence in favor of its finding,” and find factual insufficiency “[i]f, in light of the

entire record, the disputed evidence that a reasonable factfinder could not have

6 credited in favor of the finding is so significant that a factfinder could not reasonably

have formed a firm belief or conviction.” Id.

III. Analysis

The trial court in this case found that the Department had proven by clear and

convincing evidence multiple predicate grounds for termination of Mother’s parental

rights, and that termination of parental rights was in the best interest of the children.

See Tex. Fam. Code, §§ 161.001(b)(1)(D), (E), (O), (P), (R), (b)(2). “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 A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore, we will affirm the

termination order if the evidence is both legally and factually sufficient to support

any statutory ground upon which the trial court relied in terminating parental rights,

and the best interest finding. See In re E.A.G., 373 S.W.3d 129, 141 (Tex. App.—

San Antonio 2012, pet. denied).

A. Child Born Addicted

One of the specific predicate grounds found by the trial court was that Mother

had been the cause of a child being born addicted to alcohol or a controlled

substance, other than a controlled substance legally obtained by prescription. See

Tex. Fam. Code Ann. § 161.001(b)(1)(R). Mother argues that the evidence is

7 factually and legally insufficient to support the trial court’s finding on this predicate

ground because the three youngest children did not exhibit “any signs of drug

withdrawal, any serious physical problems or psychological problems.”

Medical records admitted at trial, as well as testimony presented, support that

at least some of the children the subject of this suit did in fact suffer adverse health

consequences due to Mother’s drug use. Specifically, A.R.S.2 was born with fluid

on her heart and suffers delays due to the drugs in her system, which will reportedly

continue for some time. Further, A.R.S.1’s medical records also explicitly identify

“[n]eonatal withdrawal symptoms from maternal use of drugs of addiction” in the

child’s “Problem Summary.”

However, even if the adverse health consequences were disputed, the Family

Code does not require any signs of withdrawal or “serious physical problems or

psychological problems” to support termination. Rather, it is sufficient to show that

a child “exhibit[ed] the demonstrable presence of alcohol or a controlled substance

in the child’s bodily fluids.” Tex. Fam. Code Ann. § 161.001(a)(2)(C); see also In

re L.G.R., 498 S.W.3d 195, 202–03 (Tex. App.—Houston [14th Dist.] 2016, pet.

denied) (holding that observable signs of withdrawal were not required to support

termination of rights where mother admitted marijuana use during pregnancy and

the child’s meconium tested positive); In re D.D.G., 423 S.W.3d at 474–75 (holding

8 that mother’s admission of methamphetamine use during pregnancy and child testing

positive at birth was sufficient to support termination of rights and that no expert

testimony was required to establish the level of drugs in the child’s system.); In re

M.N.O., No. 09–02–070 CV, 2002 WL 31835026, at *2 (Tex. App.—Beaumont

Dec. 19, 2002, no pet.) (not designated for publication) (upholding termination of

mother's parental rights to all three of her children on ground that she was the cause

of her youngest child being born addicted to cocaine and stating that medical records

indicating youngest child tested positive for cocaine at birth were legally and

factually sufficient evidence to support the trial court's finding under section

161.001(1)(R)); In re R.S.O.C., No. 02–11–00337–CV, 2012 WL 2923289, at *5

(Tex. App.—Fort Worth July 19, 2012, no pet.) (mem. op.) (upholding termination

of mother's parental rights to her three children after Mother testified to using

cocaine prior to youngest child’s birth and youngest child's medical records

indicated child tested positive for cocaine at birth).

Mother admitted having used various illegal drugs during each of her

pregnancies. She tested positive at the birth of the youngest twins for cocaine, PCP,

and benzos, and she admitted at that time to having last used PCP three days prior

to delivery, as well as “smoking” and other drug use. She also acknowledged in her

testimony that three of her four children were born with drugs in their systems. The

9 medical records admitted at trial show that C.S.’s meconium tested positive for PCP,

A.S.R.1’s meconium tested positive for cocaine, benzodiazepines, and PCP, and

A.S.R.2’s meconium tested positive for cannabinoids and PCP. PCP and cocaine are

both identified as controlled substances under chapter 481 of the Health and Safety

Code. See Tex. Health & Safety Code. Ann. §§ 481.002(5), 481.102(3)(D), (8) (West

2017). Accordingly, under the applicable standard of review and in light of the

record as a whole, we conclude that the evidence is both legally and factually

sufficient to support the trial court’s finding that Mother was the cause of one or

more of her children being born addicted to a controlled substance as required by

sections 161.001(a) and 161.001(b)(1)(R) of the Texas Family Code. We therefore

overrule Mother’s fifth issue.

Having determined that the evidence is legally and factually sufficient to

support the trial court’s finding under section 161.001(b)(1)(R) of the Texas Family

Code, we need not address the sufficiency of the evidence to support the trial court’s

other findings under subpart (b)(1) of the statute. See In re A.V., 113 S.W.3d at 362.

B. Best Interest

Section 161.001 requires, in addition to a predicate ground, that the

Department prove termination of parental rights is in the best interest of the children.

Tex. Fam. Code. Ann. § 161.001(b)(2). In her sixth issue, Mother challenges the

10 legal and factual sufficiency of the evidence to support the trial court’s finding that

termination is in the best interest of the children.

“[T]here is a strong presumption that the best interest of a child is served by

keeping the child with a parent.” In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In

reviewing whether termination is in a child’s best interest, we consider a non-

exhaustive list of factors: (1) desires of the children; (2) emotional and physical

needs of the children now and in the future; (3) emotional and physical danger to the

children now and in the future; (4) parental abilities of the individuals seeking

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

interest of the children; (6) plans for the children by these individuals or by the

agency seeking custody; (7) stability of the home or proposed placement; (8) acts or

omissions of the parent which may indicate that the existing parent-child relationship

is improper; and (9) any excuse for the acts or omissions of the parent. Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). We also note that evidence supporting

termination under the predicate grounds in section 161.001(b)(1) may also be

considered as evidence regarding the best interest of the children. In re L.G.R., 498

S.W.3d at 204.

11 1. Mother’s History of Drug Use

The record contains ample evidence of Mother’s long history of drug abuse,

which is a significant factor to which the court was entitled to give great weight. See

Dupree v. Tex. Dep’t of Protective and Regulatory Servs., 907 S.W.2d 81, 86 (Tex.

App.—Dallas 1995, no writ). By her own admission, Mother began using drugs at

sixteen years old, exposed every one of her children to various controlled substances

in utero, and continued to use drugs not only after her children were removed from

her custody, but up through at least the month before trial. Mother testified that she

had completed a drug treatment program at Spindletop MHMR in 2016 and was in

an aftercare program; however, she did not produce any evidence of the completion

of that program other than her testimony.3 However, even crediting that testimony

as true, the record shows that Mother continued to use cocaine and PCP well after

her purported “graduation” from the drug abuse program and through her claimed

weekly attendance in the aftercare program. She continued to use drugs after causing

three of her children to be born with controlled substances in their system, after she

knew that the Department and the court-appointed guardian ad litem were going to

3 Mother did submit an unauthenticated copy of a document purporting to be a certificate from Spindletop MHMR with her brief on appeal; however, we cannot consider documents presented on appeal that were not produced in the trial court and formally included in the appellate record. See Burke v. Ins. Auto Auctions Corp. 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied). 12 seek to have her rights terminated, after she knew the parental rights of the children’s

fathers had just terminated, and even after she was given deferred adjudication and

placed on community supervision for her April 2016, possession charge.

Thus in light of the history, pervasiveness, and severity of Mother’s drug use,

the trial court could have reasonably inferred that she was not genuinely committed

to, or capable of, maintaining a drug-free lifestyle. See In re O.N.H., 401 S.W.3d

681, 684 (Tex. App.—San Antonio 2013, no pet.) (holding that “it is proper to

measure a parent’s future conduct by his or her past conduct to determine whether

termination is in the child’s best interest.”); Ray v. Burns, 832 S.W.2d 431, 435 (Tex.

App.—Waco 1992, no writ) (noting that “[p]ast is often prologue.”).

2. Compliance with Court Ordered Services

Evidence concerning a parent’s failure to comply with court-ordered services

is also probative as to the question of best interest. In re E.C.R., 402 S.W.3d 239,

249 (Tex. 2013). There was evidence from Jerrica Landry, the Department’s

caseworker, indicating that Mother did not complete the services offered to her by

the Department and ordered by the trial court. For example, Mother did attend some

therapy sessions; however, the therapy provider reported to the caseworker that

Mother did not successfully complete therapy, did not take responsibility for her

actions, and did not learn how to deal with the problems that she had. Mother

13 acknowledged that she did not complete her second drug assessment or counseling,

and blamed the caseworker for failing to follow through on those services. The

caseworker also testified that Mother did not keep in regular contact with the

Department and that there were months when she would have to look for Mother as

opposed to Mother contacting her. Taken as a whole, the trial court could have

reasonably found that Mother’s failure to complete the services on her service plan

weighed in favor of termination of parental rights. See In re S.R., 452 S.W.3d 351,

367 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); see also In re J.O.A., 283

S.W.3d 336, 344 (Tex. 2009) (providing that “evidence of improved conduct,

especially of short-duration, does not conclusively negate the probative value of a

long history of drug use and irresponsible choices.”).

3. Permanency for the Children

“The need for permanence is the paramount consideration for the child’s

present and future physical and emotional needs.” Dupree, 907 S.W.2d at 87.

Mother has made clear, both in the trial court and on appeal, that she is actively

seeking a “less permanent” solution for the children in order to give her time to work

through the process of completing her drug court program “and any other programs

which will assist her in kicking her drug addiction.” Mother did not articulate any

plan for permanence for her children other than her vague request for more time to

14 work through the process, and she provided no information to the court to

demonstrate a serious commitment to establishing stability for the children. For

example, although she obtained a lease on an apartment a few months before trial,

she still did not have furniture in the apartment at the time of trial.

Further, in addition to extensive testimony about Mother’s inability to refrain

from drug use prior to trial, the court also heard that the charge for which Mother

was given deferred adjudication was a third degree felony and that if she used drugs

or in any other way violated her probation, she would be facing two to ten years in

prison. These issues relating to the permanency for the children all weigh in favor of

the trial court’s findings regarding the best interest of the children.

4. Desires of the Children and Their Relationship with Current Placement

Finally, the record in this case does not reflect that any of the children spoke

directly with the trial court; however, the trial court did hear evidence about the

children’s placement with Mother’s stepfather and their relationship with him, which

may be considered when assessing the desires of the children. See In re J.M., 156

S.W.3d 696, 706 (Tex. App.—Dallas 2005, no pet.). The testimony from the

Department’s caseworker indicates that Mother’s stepfather was providing the

children with a stable, drug-free environment and that the children were thriving in

their placement with him. She further testified that the children loved him and were 15 very attached to him. The children’s court-appointed guardian ad litem also testified

that Mother’s stepfather was a “great caregiver” and that it was in the children’s best

interest to remain with him. Thus, this evidence weighs in favor of the court’s finding

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

In light of the record as a whole, we find that the evidence is both legally and

factually sufficient to support the trial court’s finding that termination of Mother’s

parental rights is in the best interest of the children. We overrule issue six, and we

affirm the trial court’s judgment.

AFFIRMED.

______________________________ CHARLES KREGER Justice

Submitted on May 30, 2017 Opinion Delivered July 20, 2017

Before McKeithen, C.J., Kreger and Johnson, JJ.