in the Interest of M.T. and J.T., Children

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00320-CV

IN THE INTEREST OF M.T. AND J.T., CHILDREN

On Appeal from the County Court at Law No. 3 Lubbock County, Texas Trial Court No. 2016-522,331, Honorable Kelley Tesch, Presiding

February 20, 2020

MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

In this accelerated appeal, Appellant, Father, seeks to reverse the trial court’s

order terminating his parental rights to M.T. and J.T.1 In a single issue, Father challenges

the finding that termination is in the best interest of the children. We affirm the judgment.

1 To protect the privacy of the parties involved, we will refer to the father of the children as “Father” and to the children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2019); TEX. R. APP. P. 9.8(b). The parental rights of their mother were also terminated in this proceeding. She did not appeal. Background

In May 2018, eight-year-old M.T. and six-year-old J.T. were removed from Father’s

residence. Police sought the assistance of the Department of Family and Protective

Services after responding to a domestic violence call from the children’s home. When

the police arrived, Father was intoxicated and pushing his girlfriend, M.H., around the

house. The officers discovered marijuana hidden in multiple containers, three sets of

digital scales, two grinders, two pipes, and rolling papers. When questioned, the children

indicated that their father smoked marijuana in front of them and sold marijuana to his

friends. They also told the CPS investigator that Father pushed his girlfriend and once

banged his head against a door until the door broke. M.H. told the investigator that the

children’s Father would rather buy “weed” than pay bills, sells “weed,” smokes daily, and

permitted the electricity to be cut off. She also believed he was using cocaine at work.

Upon removal, the children were placed with their great aunt and uncle. Father tested

positive for marijuana and cocaine.

In July 2019, the final hearing was held. The State’s evidence indicated that Father

had a history of drug use, and had accumulated four drug-related convictions, and a DWI

between 2006 and 2018. Although Father participated in services early in the termination

proceedings,2 he ultimately failed to improve on the conditions that resulted in the

children’s removal—domestic violence and drug use. Since the removal, the police were

called out at least four times to Father’s home for domestic violence complaints involving

2 Father went several months without a positive drug test and attended services.

2 M.H. Father blamed his repeated drug use on the absence of his children and the stress

it created.3

The evidence also showed that Father was subject to a court-ordered service plan

that required him to cease drug use and domestic violence, in addition to creating a stable

home environment. However, during the proceedings, the evidence showed Father

continued using drugs, engaged in domestic violence, failed to provide proof of

employment, failed to inform the Department of his new residence, and avoided the

Department’s attempts to inspect his new residence.

The children, who went to live with their great aunt and uncle, received counseling

for exposure to domestic violence and drug use. Their counselor expressed concern that

the children seemed to view the domestic violence between their Father and M.H. as

“normal.” The counselor opined that it was in the children’s best interest to remain in their

current placement because of her concern for their future. The children were aware they

were not returning to Father’s home because of his drug use, but expressed a desire to

maintain a relationship with Father. The children were performing well in school and

receiving any necessary medical care. Their great aunt and uncle expressed a

willingness to keep the children long-term and adopt if Father’s parental rights were

terminated. Further, they are amenable to allowing the Father to continue having a

relationship with the children.

3 Father’s counselor testified that Father did not complete his substance abuse treatment because

he did not attend the group’s last meeting or submit a relapse prevention plan. He expressed concern for Father’s future sobriety because Father minimized his involvement with the Department, had not been honest in his counseling, and believed Father had not confronted his issues on domestic violence and drug use. He was concerned about placing the children back in Father’s home and pointed out that Father had not made any attempt to rejoin his substance abuse class or work since his relapse in July 2019. 3 After the close of evidence, the trial court issued its order of termination, finding by

clear and convincing evidence that Father had knowingly placed or allowed the children

to remain in conditions or surroundings which endangered their physical or emotional

well-being; TEX. FAM. CODE ANN. § 161.001(b)(1)(D) (West Supp. 2019),4 engaged in

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

their physical or emotional well-being; § 161.001(b)(1)(E), and failed to comply with the

provisions of the trial court’s order that specifically established the actions necessary for

Father to obtain the return of the children. § 161.001(b)(1)(O). The trial court also found

by clear and convincing evidence that it was in the children’s best interest to terminate

Father’s parental rights and allow the children to remain with their great aunt and uncle.

On appeal, Father does not challenge that he violated sections 161.001(b)(1)(D), (E), and

(O). Instead, he contends there is insufficient evidence to support the finding that

termination of Father’s interests is in the best interest of the children.

Standard of Review

When reviewing the legal sufficiency of the evidence in a termination case, the

appellate court should look at all the evidence in the light most favorable to the trial court’s

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

conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). To

give appropriate deference to the factfinder’s conclusions, we must assume that the

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

so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or

4 Throughout the remainder of this memorandum opinion, we will refer to provisions of the Texas Family Code as “§____” or “section ____.” 4 found to have been not credible, but we do not disregard undisputed facts. Id. Even

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. In

re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). 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 at 266).

In a factual sufficiency review, 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. We must 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 must also consider whether disputed evidence is such that a reasonable factfinder

could not have resolved the 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. Id.

Applicable Law

Termination of Parental Rights

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

dimension. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed.

2d 599 (1982). See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently,

termination proceedings are strictly construed in favor of the parent. In re E.R., 385

S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are not absolute, and it is 5 essential that the emotional and physical interests of a child not be sacrificed merely to

preserve those 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 require application of the

heightened standard of clear and convincing evidence in cases involving involuntary

termination of parental rights. See In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re

J.F.C., 96 S.W.3d at 263.

The clear and convincing standard does not mean that the evidence must negate

all reasonable doubt or that the evidence must be uncontroverted. In the Interest of T.N.,

180 S.W.3d 376, 382 (Tex. App.—Amarillo 2005, no pet.). The reviewing court must

recall that the trier of fact has the authority to weigh the evidence, draw reasonable

inferences therefrom, and choose between conflicting inferences. Id. Also, the trier of

fact, as opposed to the reviewing body, enjoys the right to resolve credibility issues and

conflicts within the evidence. Id. It may freely choose to believe all, part, or none of the

testimony espoused by any particular witness. Id. at 382-83 (citing In re R.D.S., 902

S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ)).

Best Interest

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

termination of Father’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. Our standard of review only permits us to reverse the

judgment when no reasonable factfinder could have formed a firm belief or conviction that

termination of his parental rights was in the children’s best interest. Id. (citing In re J.F.C.,

96 S.W.3d at 266).

6 Father is entitled to a strong presumption that the best interest of the children would

be served by preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116

(Tex. 2006). However, the presumption is not irrebuttable; the Texas Family Code

provides a list of factors to assist the trier of fact in determining a child’s best interest.

§ 263.307. In addition, the Supreme Court of Texas has articulated other factors to

consider when determining the best interest of a child. Holley v. Adams, 544 S.W.2d 367,

371-72 (Tex. 1976). Those factors include: (1) the desires of 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 by the 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.

In addition to the foregoing factors, evidence that supports one or more statutory

ground for termination may be used to support the conclusion that that termination of

parental rights is in the child’s best interest. See In re C.H., 89 S.W.3d at 28. See also

In re E.C.R., 402 S.W.3d 239, 249-50 (Tex. 2013). Additionally, 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 In re K.C.,

219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).

7 Analysis

In support of Father’s argument that there is insufficient evidence to support the

trial court’s conclusion that termination of his parent-child relationship was in the best

interest of the children, he relies on his testimony that in the past, he has provided a stable

home, educational support, medical care, clothing, and food to the children. However,

Father overlooks the evidence of his drug-related criminal record, history of drug use, the

drugs hidden in multiple containers in his house, and that he was selling drugs out of his

home during the time the children lived with him. The evidence showed that the children

were aware of where the drugs were being hidden and that Father was selling the drugs

to his friends.

In addition, the evidence shows that Father failed to comply with his service plan

after only a few months. Despite initial success, Father tested positive for marijuana after

undergoing substance abuse counseling and blamed his drug use on the absence of his

children during the Christmas holiday. Father also tested positive for marijuana and

cocaine one month before the final hearing. Father’s failure to comply with his family

service plan and repeated drug use supports the finding that termination of his parental

rights is in the children’s best interest. In the Interest of S.B., 207 S.W.3d 877, 888 (Tex.

App.—Fort Worth 2006, no pet.).

Further, the evidence shows a history of Father engaging in domestic violence, an

activity contrary to the children’s best interest. The children were initially removed when

police arrived because of a domestic violence call. Investigators reported that the children

had been exposed to such domestic violence activities at home that the children

considered such activities to be “normal.” Even while termination proceedings were

8 pending, Father and his girlfriend continued their on-again-off-again relationship, and the

police received at least four additional domestic violence calls to his residence. One of

these calls occurred as recently as a month before the final hearing. This evidence belies

Father’s assurances that he can maintain a safe living environment for the children or that

their return would be in their best interest.

Juxtaposed against the backdrop of the children’s living conditions during their time

with Father is their performance since their removal. The children have been living with

their great aunt and uncle. Their home is stable and drug free. There is no domestic

violence. The children are responding well to counseling and performing well in school.

Their great aunt and uncle have expressed a desire to adopt the children and they wish

to keep the children long-term. The children have expressed a desire to continue a

relationship with their Father, and their great aunt and uncle are amenable to allowing the

relationship to continue, albeit outside the daily living environment the children were in

with Father.

Based upon our review of the entire record, we conclude that the trial court could

have reasonably formed a firm conviction or belief that termination of Father’s rights was

in the children’s best interest. Therefore, we hold that the evidence is sufficient to support

the trial court’s finding that termination is in the children’s best interest.

Conclusion

We affirm the judgment terminating Father’s parental rights.

Lawrence M. Doss Justice 9