In the Interest of P.D.H., K.R.H., and T.H., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 5, 2024
• Docket: 06-23-00089-CV
• Status: Published

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-23-00089-CV

IN THE INTEREST OF P.D.H., K.R.H., AND T.H., CHILDREN

On Appeal from the County Court at Law Lamar County, Texas Trial Court No. 91337

Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION

The Department of Family and Protective Services filed a petition to terminate Mother’s

parental rights to her children, Parker, Katie, and Ty.1 Following a bench trial, the trial court

terminated Mother’s parental rights after finding that (1) she knowingly placed or allowed the

children to remain in conditions or surroundings that endangered their physical or emotional

well-being, (2) she engaged in conduct or knowingly placed the children with persons who

engaged in conduct that endangered their physical or emotional well-being, (3) she used a

controlled substance and failed to either complete a substance abuse treatment program or used

drugs after completing the program, as described in Section 161.001(b)(1)(P) of the Texas

Family Code, (4) she was the cause of a child being born addicted to alcohol or drugs, as

described in Section 161.001(b)(1)(R), and (5) termination of her parental rights was in the

children’s best interests. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (P), (R), (b)(2)

(Supp.).

On appeal, Mother argues that the evidence is legally and factually insufficient to support

the trial court’s findings that there were statutory grounds to terminate her parental rights.

Because we find the evidence legally and factually sufficient to support the trial court’s finding

of statutory grounds, we affirm the trial court’s judgment terminating Mother’s parental rights to

Parker, Katie, and Ty.

1 We use pseudonyms to protect the identities of the children. See TEX. R. APP. P. 9.8. 2 I. A Statutory Ground for Termination of Mother’s Parental Rights is Supported by Legally and Factually Sufficient Evidence

A. Standard of Review

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

dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to

make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel

v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates

fundamental interests, a higher standard of proof—clear and convincing evidence—is required at

trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). “This Court is . . . required to

‘engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to

support the termination of parental rights.’” Id. (quoting In re A.B., 437 S.W.3d at 500).

“[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id. (alteration in

original) (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied)

(quoting Holick, 685 S.W.2d at 20)).

“In order to terminate parental rights, the trial court must find, by clear and convincing

evidence, that the parent has engaged in at least one statutory ground for termination and that

termination is in the child[ren]’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001;

In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that

‘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.’” Id. (quoting TEX. FAM. CODE ANN.

3 § 101.007 (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009))). “This standard of proof

necessarily affects our review of the evidence.” Id.

“In our legal sufficiency review, we consider all the evidence in the light most favorable

to the findings to determine whether the fact-finder reasonably could have formed a firm belief

or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920

(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per

curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We assume

the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable

fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably

disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re J.P.B., 180

S.W.3d at 573).

“In our review of factual sufficiency, we give due consideration to evidence the trial

court could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209

S.W.3d 105, 108 (Tex. 2006) (per curiam)). “We consider only that evidence the fact-finder

reasonably could have found to be clear and convincing and determine ‘whether the evidence is

such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the

. . . allegations.’” Id. (alteration in original) (quoting In re H.R.M., 209 S.W.3d at 108 (quoting

In re C.H., 89 S.W.3d 17, 25 (Tex. 2002))); see In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex.

2002). “If, in light of the entire record, the disputed evidence that a reasonable fact[-]finder

could not have credited in favor of the finding is so significant that a fact[-]finder could not

reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.”

4 Id. (quoting In re J.F.C., 96 S.W.3d at 266). “‘[I]n making this determination,’ we must

undertake ‘an exacting review of the entire record with a healthy regard for the constitutional

interests at stake.’” Id. (alteration in original) (quoting In re A.B., 437 S.W.3d 498, 503 (Tex.

2014) (quoting In re C.H., 89 S.W.3d at 26)). “We also recognize that the trial court, as the fact-

finder, is the sole arbiter of a witness’ demeanor and credibility, and it may believe all, part, or

none of a witness’ testimony.” In re A.M., No. 06-18-00012-CV, 2018 WL 3077784, at *3 (Tex.

App.—Texarkana June 22, 2018, pet. denied) (mem. op.) (citing In re H.R.M., 209 S.W.3d at

109).

“Despite the profound constitutional interests at stake in a proceeding to terminate

parental rights, ‘the rights of natural parents are not absolute; protection of the child is

paramount.’” In re L.E.S., 471 S.W.3d at 920 (quoting In re A.V., 113 S.W.3d 355, 361 (Tex.

2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994))) (citing In re M.S., 115 S.W.3d

534, 547 (Tex. 2003)). “A child’s emotional and physical interests must not be sacrificed merely

to preserve parental rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—

Texarkana 2015, no pet.) (citing In re C.H., 89 S.W.3d at 26)).

B. The Evidence at Trial

Scottie Rhodes, a conservatorship supervisor for the Department, testified that Mother

had a “past CPS history” with “prior removals of her children.” In an affidavit submitted to and

considered by the trial court, Mother admitted that she had lost her parental rights to other

children.

5 Rhodes said the Department became involved again after Ty was born prematurely and

tested positive for amphetamines and cocaine. According to Rhodes, Ty weighed 1.8 pounds at

birth, experienced symptoms of drug withdrawal, and required much medical intervention.

Rhodes testified that Mother “admitted to knowing that she was pregnant and making the choice

to use illegal substances knowing that it would harm [Ty]” and that she also “used illegal

substances around . . . her older children.” Rhodes said that criminal charges were filed against

Mother after Parker and Katie tested positive for “significant levels” of drugs.

Rhodes said that the Department provided Mother with a family service plan but that she

was unable to complete individual counseling, maintain stable housing, or remain drug-free.

According to Rhodes, Mother continued to test positive for drugs during the pendency of the

case, was jailed in March 2023,2 and received a sentence of twenty-four months’ confinement for

child endangerment. She also said Mother failed to demonstrate that she could provide for the

children. As a result, Rhodes believed that returning the children to Mother would endanger

their physical and emotional well-being.

Rochelle Bass, the children’s Court Appointed Special Advocate (CASA), testified that

the children were all doing well with their foster placements and that terminating Mother’s

parental rights was in the children’s best interests.

C. Sufficient Evidence Supports the Ground E Finding

By her sole issue, Mother asserts that the evidence is legally and factually insufficient to

support the trial court’s findings under grounds D, E, P, and R. “Only one predicate finding

2 Rhodes clarified that Mother had over six months to work on her family service plan before being incarcerated. 6 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[ren]’s best interest.” Id. at 923 (quoting In re O.R.F.,

417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting In re A.V., 113 S.W.3d at

362) (citing In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.))). Even so,

when the trial court’s findings under grounds D or E are challenged on appeal, due process

demands that we review the evidence supporting the findings under at least one of those grounds.

See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) (“We hold that due process and

due course of law requirements mandate that an appellate court detail its analysis for an appeal of

termination of parental rights under [S]ection 161.001(b)(1)(D) or (E) of the Family Code.”).

This is because termination of parental rights under these grounds may implicate the parent’s

parental rights to other children. Id. at 234; see TEX. FAM. CODE ANN. § 161.001(b)(1)(M)

(Supp.) (providing as a ground for termination of parental rights that the parent “had his or her

parent-child relationship terminated with respect to another child based on a finding that the

parent’s conduct was in violation of Paragraph (D) or (E)”).

Ground E permits the termination of a parent’s parental rights “if the court finds by clear

and convincing evidence . . . that the parent has . . . engaged in conduct . . . which endangers the

physical or emotional well-being of the child[ren].” TEX. FAM. CODE ANN. § 161.001(b)(1)(E).

Endanger “means more than a threat of metaphysical injury or potential ill effects of a less-than-

ideal family environment.” In re E.N.C., 384 S.W.3d at 803. “‘[E]ndanger’ means to expose to

loss or injury; to jeopardize.” Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.

1987); In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.); see In re

7 L.E.S., 471 S.W.3d at 923. “It is not necessary that the conduct be directed at the child[ren] or

that the child[ren] actually suffer injury.” In re L.E.S., 471 S.W.3d at 923. Under ground “(E), it

is sufficient that the child[ren]’s well-being is jeopardized or exposed to loss or injury.” Id.

(citing Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 367). “Further, termination under

[ground] (E) must be based on more than a single act or omission. Instead, a ‘voluntary,

deliberate, and conscious course of conduct by the parent is required.’” Id. (quoting Perez v.

Tex. Dep’t of Protective & Regul. Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no

pet.) (citing In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.))); see

Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 366–67.

Ground E “refers only to the parent’s conduct, as evidenced not only by the parent’s acts,

but also by the parent’s omissions or failures to act.’” In re S.K., 198 S.W.3d 899, 902 (Tex.

App.—Dallas 2006, pet. denied); In re N.S.G., 235 S.W.3d at 366–67. The endangering conduct

may also occur “either before or after the child[ren]’s removal by the Department.” In re Z.J.,

No. 02-19-00118-CV, 2019 WL 6205252, at *11 (Tex. App.—Fort Worth Nov. 21, 2019, pet.

denied) (mem. op.) (citing Walker v. Tex. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608,

617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)).

“‘Because it exposes the child[ren] to the possibility that the parent may be impaired or

imprisoned, illegal drug use may support termination under’ Ground E.” In re H.M.J., No. 06-

18-00009-CV, 2018 WL 3028980, at *5 (Tex. App.—Texarkana June 19, 2018, no pet.) (mem.

op.) (quoting In re A.L., No. 06-14-00050-CV, 2014 WL 5204888, at *7 (Tex. App.—Texarkana

Oct. 8, 2014, no pet.) (mem. op.) (quoting Walker, 312 S.W.3d at 617)). “Drug use and its effect

8 on a parent’s life and [her] ability to parent may establish an endangering course of conduct.” Id.

(quoting In re J.L.B., 349 S.W.3d at 848 (quoting In re N.S.G., 235 S.W.3d at 368)); In re J.O.A.,

283 S.W.3d 336, 345 n.4 (Tex. 2009); In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008,

no pet.) (“Evidence of illegal drug use or alcohol abuse by a parent is often cited as conduct

which will support an affirmative finding that the parent has engaged in a course of conduct

which has the effect of endangering the child.”). In our analysis under ground E, we may also

consider a parent’s failure to complete relevant requirements of a family service plan. In re Z.J.,

2019 WL 6205252, at *11; In re U.H.R., No. 07-18-00318-CV, 2019 WL 81874, at *5 (Tex.

App.—Amarillo Jan. 2, 2019, no pet.) (mem. op.).

Here, clear and convincing evidence supported the trial court’s conclusion that Mother

engaged in an endangering course of conduct. The evidence showed that Mother had previously

lost her parental rights to her other children, exposed Parker and Katie to drugs, and used

amphetamine and cocaine while pregnant with Ty in spite of the physical risks to him. Even

while faced with termination of her parental rights, Mother continued to use drugs during the

pendency of the case. “A parent’s failure to remain drug-free while under the Department’s

supervision will support a finding of endangering conduct under [ground] (E) . . . .” In re

H.M.J., 2018 WL 3028980, at *5 (quoting In re J.A.W., No. 02-08-215-CV, 2009 WL 579287, at

*4 (Tex. App.—Fort Worth Mar. 5, 2009, no pet.) (per curiam) (mem. op.) (citing Vasquez v.

Tex. Dep’t of Protective & Regul. Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.]

2005, pet. denied)). Mother also failed to complete her family service plan and was jailed for

child endangerment, which exposed the children to the loss of a parent for twenty-four months.

9 From the above-recited evidence, we conclude that the record firmly established that

Mother engaged in a course of conduct that endangered the children’s physical and emotional

well-being. As a result, we find that legally and factually sufficient evidence supported the trial

court’s finding under ground E.

Since there was sufficient evidence supporting the trial court’s finding under ground E,

we need not review its findings under grounds D, P, and R. See J.T. v. Tex. Dep’t of Fam. &

Protective Servs., No. 03-21-00070-CV, 2021 WL 2672055, at *9 (Tex. App.—Austin June 30,

2021, no pet.) (mem. op.); In re M.F., No. 14-19-00964-CV, 2020 WL 2832166, at *8 (Tex.

App.—Houston [14th Dist.] May 28, 2020, pet. denied) (mem. op.). We overrule Mother’s sole

point of error.

II. Conclusion

We affirm the trial court’s judgment.

Scott E. Stevens Chief Justice

Date Submitted: February 2, 2024 Date Decided: February 5, 2024