in the Interest of M.M.S. and C.E.S., Children

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-16-00271-CV

IN THE INTEREST OF M.M.S. AND C.E.S., CHILDREN

On Appeal from the 316th District Court Hutchinson County, Texas Trial Court No. 41, 639, Honorable James M. Mosley, Presiding

October 6, 2016

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

E.S., the mother of M.M.S. and C.E.S.,1 appeals the trial court’s judgment

terminating her parental rights to the children.2 The children were seven and five years

old, respectively, at the time of the trial. The trial court found by clear and convincing

evidence that E.S.’s parental rights should be terminated pursuant to subsections (D),

(E), (O), and (P) of Section 161.001(b)(1). See TEX. FAM. CODE ANN.

1 Pursuant to Texas Rule of Appellate Procedure 9.8 the children and all parties will be referred to by their initials. 2 The father, N.S., has not appealed the trial court’s judgment terminating his parental rights and is not a party to this appeal. § 161.001(b)(1)(D), (E), (O), (P) (West Supp. 2016).3 The trial court also found by clear

and convincing evidence that termination of E.S.’s parental rights was in the best

interest of the children. See § 161.001(b)(2). E.S. appeals on the ground that the best

interest finding entered by the trial court is not supported by legally or factually sufficient

evidence. She does not contest the trial court’s findings regarding the predicate acts

upon which the termination was based. We will affirm.

Factual and Procedural Background

E.S. has a long history of involvement with the Department of Family and

Protective Services (Department). Additionally, E.S. has had involvement with the

Oklahoma Department of Human Services, that state’s equivalent to the Texas

Department of Family and Protective Services. The current case arose out of an

incident on October 25, 2014. Officer Stephanie Willoughby went to the apartment that

E.S. shared with her boyfriend to conduct a “welfare check.” Upon arriving, Willoughby

found that E.S. had been assaulted by her boyfriend, Clay, after she had forcefully

kicked him out of the apartment. Willoughby knew that E.S. had several warrants

outstanding for traffic offenses and, as part of the assault investigation, arrested E.S. for

these warrants. After ascertaining that there was no one to take care of the children,

Willoughby contacted the Department.

The Department’s investigator, Wanda Trim, investigated the incident. At the

time of her visit with E.S., E.S. was in jail on the warrants. E.S. advised Trim that she

awoke to find Clay smoking marijuana in the apartment and asked him to leave. This

confrontation then escalated into Clay’s assault of E.S. While Trim was interviewing

E.S. at the jail, E.S. denied that she had been using drugs and asserted she was simply 3 Further reference to the Texas Family Code will be by reference to “Section ____” or “§ ____.”

2 trying to protect the children from Clay’s drug usage. The children were placed with

E.S.’s sister. This placement lasted for approximately one month, when the sister

returned the children to the Department stating she could not continue to take care of

the children due to their special needs.

Despite stating she was not using drugs, on November 6, 2014, E.S. was

administered a drug test and tested positive for amphetamine, methamphetamine, and

marijuana. Further, E.S. admitted to Trim that she had used drugs while caring for the

children and that Clay had also used drugs in the presence of the children. The

daughter, M.M.S., was administered a hair follicle drug test on November 5, 2014, and

the test was positive for methamphetamine. As a result of E.S.’s continued use of

drugs, the Department then filed this petition seeking termination on December 30,

2014.

During the trial, the evidence showed that E.S. had a long-standing addiction to

drugs. Specifically, E.S. admitted that she had been addicted to methamphetamine for

years. E.S. had two arrests for drug-related offenses in 2004. Her first arrest that year

was for delivery of methamphetamine in July of 2004, followed by an arrest for

possession of the same drug in December 2004. She was placed on deferred

adjudication in 2005; however, her deferred adjudication was adjudicated, and E.S. was

sentenced to serve five years in prison. According to her testimony, E.S. used

methamphetamine on an almost daily basis between 2004 and 2006 before being sent

to prison.

E.S. was released from prison on parole in October 2008. At that time, E.S.

began living with N.S., the father of the children. N.S. testified that he and E.S. used

3 methamphetamine on a regular basis when they were together. This usage included

the period of time after they had the children of the marriage.

M.M.S. was born on May 23, 2009, prematurely. She has suffered from

difficulties breathing since birth. M.M.S. has been in an early childhood intervention

program since shortly after her birth. M.M.S. has significant developmental delay issues

and has been diagnosed as mildly retarded. C.E.S. was born July 1, 2011. Since early

on, he has demonstrated significant issues regarding anger management.

E.S. admitted that she began using methamphetamine intermittently after M.M.S.

was born. E.S. was arrested for possession of marijuana and a parole warrant in 2010.

As a result of this arrest, E.S. spent seventy-seven days in jail. In 2012, E.S. was

contacted by the Department regarding a report that she was using methamphetamine.

E.S. was scheduled for a drug test but failed to appear. Instead, E.S. took the children

to Oklahoma. E.S. testified she fled to Oklahoma with the children because she knew

she could not pass the drug test.

While E.S. was living in Oklahoma with the children, they were removed from her

care due to allegations relating to drug usage and because of her open case in Texas.

E.S. testified that she completed her service plan in Oklahoma and the children were

returned to her possession on a trial basis in August 2013 and fully in December 2013.

The Oklahoma case was dismissed in February 2014. Yet, within two weeks after

returning to Texas, E.S. was arrested for possession of a controlled substance. E.S.

admitted that she returned to using methamphetamine after returning to Texas.

In June or July of 2014, E.S. became involved with Clay. E.S. admitted that Clay

was a methamphetamine user. She further admitted that she did use

4 methamphetamine with Clay while the children were living in the home with them. Clay

was the boyfriend who assaulted E.S. in the presence of the children in October of

During the trial, a significant part of the testimony dealt with the medical problems

faced by M.M.S. M.M.S. has had issues with her lungs since her birth. Lori Williams,

the nurse at the elementary school where M.M.S. attended, testified that on October 17,

2014, M.M.S. came to school and appeared to be “really sick.” According to Williams,

M.M.S. was suffering from increased respiration rate and increased heart rate. Williams

attempted to contact E.S., but the phone number she had for E.S. was not a working

number. The child’s teacher’s aide rode home on the bus with M.M.S. The following

Monday, Williams again noticed that M.M.S. appeared to be sicker. Williams again

attempted to contact E.S. to no avail. Williams finally left a voicemail message with

M.M.S.’s grandmother. On that Monday, Williams concluded that M.M.S.’s oxygen level

was too low and she appeared to be panting and struggling to breath. Williams

consulted a nurse practitioner at a nearby clinic and, based on that discussion, called an

ambulance to take M.M.S. to the hospital.

Because Williams could not contact E.S., she contacted the sheriff’s office and

asked that they try to locate E.S. While in the ambulance, M.M.S. was given oxygen,

steroid shots, and breathing treatments. At the hospital, M.M.S. was diagnosed with an

upper respiratory infection.

E.S. arrived at the hospital approximately thirty minutes after M.M.S. While

talking to E.S., Williams attempted to get current contact information for her, to include

an address and working phone number. E.S. declined to give Williams the information

5 stating that she had active warrants and did not want to give that information out.

Williams testified that E.S. did not seem to be appropriately concerned with M.M.S.’s

welfare. Upon M.M.S.’s discharge from the hospital, E.S. was advised to make sure

that M.M.S. receive her breathing treatments at home in addition to those that would be

given to her at the school. After M.M.S. continued to come to school suffering from

apparent breathing difficulty, Williams contacted the Department over her concerns that

M.M.S. was not receiving her breathing treatments at home.

When E.S. was arrested during the domestic assault investigation, Williams was

asked to care for C.E.S. while E.S. was in jail. Williams agreed to keep C.E.S. for a

week under the Department’s safety plan while E.S. was in jail. However, although E.S.

had agreed to contact the Department when she was released from jail, she failed to do

so. The investigator for the Department, Trim, eventually tracked E.S. down at a leather

shop. All E.S. could say regarding her failure to contact the Department when she was

released from jail was that it was just bad judgment on her part. E.S. admitted during

her testimony that, during this time, she continued to use methamphetamine while

caring for M.M.S.

The testimony at trial revealed that E.S. had agreed to a service plan of various

steps necessary for her to regain possession of her children. Initially, E.S. signed the

service plan on February 11, 2015. After a new caseworker had been assigned the

case, E.S. again reviewed the service plan with her new caseworker, Cristin Davis.

Davis testified that E.S. had failed to complete the required psychological evaluation,

did not follow through with inpatient treatment as recommended by the OSAR4

evaluation, and failed to remain drug-free. E.S. testified that she did not maintain a 4 Outreach, Screening, Assessment, and Referral Center.

6 drug-free lifestyle. As to the psychological testing requirement, E.S. testified she

scheduled an appointment for the evaluation but was arrested the day before the

appointment. Although not mentioned in Davis’s testimony, E.S. admitted that she had

not maintained any employment prior to being incarcerated.

At the time of trial, the district attorney where E.S. resided revealed that E.S. had

pending charges for possession of a controlled substance and tampering with evidence

that arose from an arrest in February 2014. Also pending at the date of trial was

another possession of a controlled substance charge that arose in February 2015, and

a pending indictment for credit card abuse that also arose in February 2015.

After hearing the evidence, the trial court entered a final order in suit affecting

parent-child relationship that terminated E.S.’s parental rights on the following grounds:

1. Knowingly placing or knowingly allowing the children to remain in conditions or surroundings which endanger the physical or emotional well- being of the children;

2. Engaging in conduct or knowingly placing the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children;

3. Failing to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the children;

4. Using a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the children.

See § 161.001(b)(1)(D), (E), (O), (P) (West Supp. 2016). Additionally, the trial court

found that termination of E.S.’s parental rights was in the best interest of the children.

§ 161.001(b)(2).

7 E.S. does not challenge the trial court’s finding regarding the four predicate acts;

therefore, we will treat those acts as conceded by E.S. Instead, E.S. only challenges

the legal and factual sufficiency of the evidence to sustain the trial court’s decision that

termination was in the best interest of the children. We disagree with E.S. and will

affirm the trial court’s judgment.

Standard of Review

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

dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,

455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). A decree terminating

this natural right is complete, final, irrevocable, and divests for all time that natural right

as well as all legal rights, privileges, duties, and powers between the parent and child

except for the child’s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are

required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846

(Tex. 1980). However, parental rights are not absolute, and the emotional and physical

interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89

S.W.3d 17, 26 (Tex. 2002).

The Texas Family Code permits a court to terminate the parent-child relationship

if the petitioner establishes both (1) one or more acts or omissions enumerated under

Section 161.001(b)(1), and (2) that termination of the parent-child relationship is in the

best interest of the child. § 161.001(b). Though evidence may be relevant to both

elements, each element must be proved, and proof of one does not relieve the burden

of proving the other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground

and best interest of the child must be proved, only one statutory ground is required to

8 terminate parental rights under Section 161.001(b). See In re A.V., 113 S.W.3d 355,

362 (Tex. 2003). Therefore, we will affirm the trial court’s judgment of termination if

legally and factually sufficient evidence supports any one of the grounds found in the

judgment, provided the record shows that it was also in the best interest of the child for

the parent’s rights to be terminated. See id.

Due process requires the application of the clear and convincing standard of

proof in cases involving involuntary termination of parental rights. In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002); see § 161.206(a) (West 2014). “‘Clear and convincing

evidence’ means 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.” § 101.007 (West 2014). This standard, which focuses on whether a

reasonable jury could form a firm belief or conviction, retains the deference a reviewing

court must have for the factfinder’s role. In re C.H., 89 S.W.3d at 26.

When we employ the clear and convincing evidence standard, we are not saying

that the evidence must negate all reasonable doubt or that the evidence is required to

be uncontroverted. See In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995,

no writ). We may not substitute our judgment for that of the factfinder; rather, we must

still provide due deference to the decision of the factfinder. See In re A.B., 437 S.W.3d

498, 503 (Tex. 2014). The factfinder is the sole arbiter when making determinations

regarding the credibility and demeanor of the witnesses. See id.

When reviewing the legal sufficiency of the evidence supporting an order

terminating parental rights, we look at all the evidence in the light most favorable to the

9 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. See In re J.F.C.,

96 S.W.3d at 265–66. “To give appropriate deference to the factfinder’s conclusions

and the role of a court conducting a legal sufficiency review, looking at the evidence in

the light most favorable to the judgment means that a reviewing court must assume that

the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder

could do so.” Id. at 266. In other words, we will disregard all evidence that a

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

When reviewing the factual sufficiency of the evidence supporting a judgment of

termination, 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.” In re C.H., 89 S.W.3d at 25. In conducting this review, we consider

whether the disputed evidence is such that a reasonable factfinder could not have

resolved the disputed evidence in favor of its finding. See In re J.F.C., 96 S.W.3d at

266. “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

We begin our analysis with the reminder that E.S. has not appealed the finding of

the trial court regarding any of the statutory predicate acts. This being said, we are

mindful that evidence proving one or more of the statutory predicate grounds for

10 termination can also be probative evidence that termination is in the best interest of the

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

Turning to the evidence, we note that, by E.S.’s admissions during testimony, the

following are true:

1. E.S.continued to use methamphetamine during the pendency of the suit to terminate her parental rights.

2. She was incarcerated at the time of her trial.

3. She was facing further charges at the time of the trial.

4. She had been the victim of a domestic assault from her boyfriend, Clay, yet began seeing him again after she was released from jail.

5. She did not complete the service plan as agreed with the Department.

6. She did not have any definite plans for the children if she was sentenced to further incarceration on any of the pending charges.

7. She had failed to properly supervise M.M.S.’s medical treatment for M.M.S.’s chronic lung issues.

8. She failed to pick the children up after she was released from jail.

9. When not incarcerated during the pendency of the termination proceeding, she was not gainfully employed.

We will use these factual matters in addressing the Holley factors to determine whether

termination is in the best interest of the children. See Holley v. Adams, 544 S.W.2d

367, 372 (Tex. 1976).

The Texas Supreme Court outlined a non-exhaustive set of factors to be used in

determining whether termination of the parent child relationship was in the best interest

of the children. See id. The factors are as follows: (1) the desires of the children; (2)

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

emotional and physical danger to the children now and in the future; (4) the parenting

11 abilities of the parent seeking custody; (5) the programs available to assist the parent;

(6) the plans for the child by the parties seeking custody; (7) the stability of the home or

proposed placement; (8) the acts or omissions committed by 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 committed by the parent. See id.; see also In re D.S.,

333 S.W.3d 379, 383–84 (Tex. App.—Amarillo 2011, no pet.). In applying the Holley

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

conduct.” In re D.S. 333 S.W.3d at 384. The evidence need not establish proof that all

of the Holley factors support the conclusion that termination is in the best interest of the

children and the absence of evidence about some factors does not preclude the

factfinder from reasonably forming a strong conviction that termination is in the

children’s best interest. See In re C.H., 89 S.W.3d at 27.

The finding that E.S. has knowingly placed or knowingly allowed the children to

remain in conditions or surroundings which endanger the physical or emotional well-

being of the children and engaging in conduct or knowingly placed the children with

persons who engaged in conduct which endangers the physical or emotional well-being

of the children supports the proposition that termination of the parent-child relationship

is in the best interest of the children under the second and third Holley factors. To this

we add the testimony of E.S. that she continued to use methamphetamine during the

pendency of this suit and that she, in fact, used methamphetamine around M.M.S. That

M.M.S. tested positive for methamphetamine is further proof of the endangerment of the

children. Thus, the second and third Holley factors strongly support the termination of

the parental rights.

12 Throughout the pendency of this matter E.S. has either been incarcerated or

moving from location to location. The record reflects that, since the Department took

possession of the children, E.S. has either been incarcerated or unemployed. E.S. has

lived with Clay during the pendency of the suit when she knew he was a

methamphetamine user. Clay committed an act of domestic violence against E.S., yet

after she made a complaint against him for this domestic violence, E.S. again began

living with him. This evidence supports the trial court’s decision to terminate the

parental rights under the fourth Holley factor, that is, the parental abilities of the parent

seeking custody.

As to the stability of the home of the parent seeking custody, the seventh Holley

factor, the evidence at the trial was that E.S. had a proposal to move the children to

Boyd, Texas, where E.S. believed she had employment or to go to a half-way house in

Amarillo, Texas. The problem with E.S.’s plans are multiple. First, no one associated

with the proposed move to Boyd, Texas, testified that such a move was actually a

realistic alternative. Second, if E.S. went to the half-way house in Amarillo, the children,

according to E.S.’s own testimony, could not live there. Finally, her proposals

completely failed to account for the fact that E.S. had additional charges pending

against her that had not been disposed of. E.S.’s solution for this was for the

Department to continue with managing conservatorship until such time as she could get

these pending matters resolved. No evidence was adduced as to how long this would

be.

On the other side of this equation was the testimony of the Department that the

children were in a foster care situation that specialized in special needs children.

13 Although there was no testimony that these foster parents were going to adopt the

children, such an alternative was still under consideration. Regardless, the children

were currently receiving the type of care that addressed their specialized needs. This

factor also supports the trial court’s decision that termination was in the best interest of

the children.

As to the eighth Holley factor, the acts or omissions of the parent that indicate

that the current parent-child relationship is not in the children’s best interest, the record

speaks for itself: continued use of methamphetamine, lack of judgment to protect the

children, pending criminal cases, and incarceration through most of the time the case

was pending. These acts and omissions support the trial court’s finding that termination

is in the best interest of these children.

In the final analysis, based upon the record before the Court, when we look at all

the evidence in the light most favorable to the 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, the evidence is legally sufficient to support the trial

court’s judgment. See In re J.F.C., 96 S.W.3d at 265–66. Accordingly, the evidence is

legally sufficient and we overrule E.S.’s contention to the contrary.

When we review the evidence for factual sufficiency, that is whether the

evidence is such that a factfinder could reasonably form a firm belief or conviction about

the truth of the Department’s allegations, we conclude that the evidence supports the

trial court’s determination. See In re C.H., 89 S.W.3d at 25. Accordingly, we find the

evidence sufficient to support the judgment of the trial court and we overrule E.S.’s

contention to the contrary.

14 We are mindful that E.S. presented testimony about the steps she had taken to

become a better parent. E.S. presented a number of different certificates for courses

that she had completed while incarcerated that dealt with making better decisions, how

to deal with drug addiction, and how to be a better parent. While she is commended for

her efforts, the fact that she has demonstrated a recent effort and, possibly, has, in fact,

had a recent turn-around in her behavior does not totally offset her past behavior. See

In re J.J., No. 07-13-0017-CV, 2013 Tex. App. LEXIS 11194, at *27 (Tex. App.—

Amarillo Aug. 29, 2013, no pet.) (mem. op.). This is especially true under the facts of

this case where the evidence shows that E.S. had an earlier conviction yet, when she

was released from prison, went back to the same conduct that led to her first

incarceration. The trial court was not required to believe that there has been a lasting

change in the parent’s attitude since her children were removed. See Pruitt v. D.F.P.S.,

No. 03-10-00089-CV, 2010 Tex. App. LEXIS 10272, at *27 (Tex. App.—Austin Dec. 23,

2010, no pet.) (mem. op.).

Conclusion

Having overruled E.S.’s issues regarding the legal and factual sufficiency of the

evidence to support the trial court’s best interest determination, we affirm the order of

the trial court terminating her parental rights to the children.

Mackey K. Hancock Justice