in the Interest of R.A.S. and J.R.S.

• Court: Court of Appeals of Texas
• Decided: October 22, 2020
• Docket: 09-20-00140-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00140-CV __________________

IN THE INTEREST OF R.A.S. AND J.R.S. __________________________________________________________________

On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 18-11-15193-CV __________________________________________________________________

MEMORANDUM OPINION

Mother and Father seek to overturn the trial court’s judgment terminating their

parental rights to their children, Abbie and James.1 In separate appeals, Mother and

Father argue the evidence does not support the trial court’s findings that terminating

their parent-child relationships with Abbie and James is in each child’s best interest.2

1 To protect the privacy of the parties involved in the appeal, we identify the parents and their children by using pseudonyms. See Tex. Fam. Code Ann. § 109.002(d). 2 See id. § 161.001(b) (authorizing courts to order a parent’s relationship with a child terminated upon one of the predicate statutory findings listed in section 161.001(b)(1) of the Texas Family Code when that finding is coupled with another finding that terminating the relationship is in the child’s best interest). 1 After reviewing the evidence, we overrule the parents’ issues claiming it is

insufficient to support the trial court’s best-interest findings. We will affirm.

Background

In 2015, the Department of Family and Protective Services learned Mother

and Father were not properly caring for their child, Abbie. That year, the Department

removed Abbie from the parents after it learned the police arrested Mother and had

charged her with possession of marijuana and controlled substances under

circumstances determinantal to the child. Although the Department removed Abbie

from her parents’ home, the Department later reunited Mother and Father with Abbie

in 2017 after they completed a family reunification plan. In mid-2017, Mother gave

birth to James.

Abbie and James came to the Department’s attention again in January 2019,

when the Department learned that Father was homeless and that the police had

arrested Mother and charged her with the possession of cocaine. After opening a

second investigation, which focused mainly on Mother’s use of illegal drugs, the

Department removed Abbie and James from Mother’s home. Father was not living

in the home, and the Department refused to place the children with him because his

housing was unstable and he could not provide them a safe place to live.

2 In January 2019, the Department moved to terminate Mother’s and Father’s

rights to parent Abbie and James. In March 2020, the court called the case to trial.

Ten witnesses, including Mother and Father, testified in the trial. The parties tried

the disputed issues to the bench. Following the trial, the trial court terminated

Mother’s and Father’s rights to Abbie and James. In terminating their rights, the trial

court found that each had knowingly placed or allowed Abbie and James to remain

in conditions that endangered their well-being, engaged in conduct or knowingly

placed them with persons who engaged in conduct that endangered their physical or

emotional well-being, and violated the provisions of a court order that set out what

each needed to do before the court would order the Department to return the children

to them.3 Along with these three predicate findings under subsections D, E, and O

of the Family Code, the trial court also found the termination of their rights would

be in each child’s best interest.4

Mother and Father filed separate appeals. But in each brief, the parents argue

the evidence admitted in the trial is legally and factually insufficient to support the

trial court’s best-interest findings.

3 See id. § 161.001(b)(1)(D), (E), (O). 4 See id. § 161.001(b)(2). 3 Standard of Review

On appeal, Mother and Father do not argue the evidence is insufficient to

support the findings that they violated subsections D, E, and O of the Family Code.5

Instead, both challenge the sufficiency of the evidence supporting the trial court’s

best-interest findings.

“In determining whether the evidence is legally sufficient to support a best-

interest finding, we ‘consider the evidence that supports a deemed finding regarding

best interest and the undisputed evidence,’ and ignore evidence a fact-finder could

reasonably disbelieve.” 6 Under the Family Code, a “rebuttable presumption [exists]

that the appointment of the parents of a child as joint managing conservators” will

serve the child’s best interest. 7 That said, there is also a rebuttable presumption that

a prompt and permanent placement of a child in a safe environment is in that child’s

best interest.8

In our review of a best-interest finding, we apply the nine factors described

by the Texas Supreme Court in Holley v. Adams to measure whether the record

5 Id. § 161.001(b)(1)(D), (E), (O). 6 In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (quoting In re J.F.C., 96 S.W.3d 256, 268 (Tex. 2002)). 7 Tex. Fam. Code Ann. § 153.131(b); see also In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (noting that a “strong presumption” exists favoring keeping a child with its parents). 8 Tex. Fam. Code Ann. § 263.307(a). 4 contains evidence sufficient to support a finding that terminating a parent’s right to

his or her child is in the child’s best interest.9 We note, however, that these factors

are not exclusive, and courts may consider other factors when deciding whether the

evidence in a specific case supports the trial court’s best-interest finding. 10 Here,

Mother and Father note the Department failed to produce evidence that addressed

all nine of the Holley factors. But the Department is not required to do so when “the

evidence [is] undisputed that the parental relationship endangered the safety of the

child.” 11 As we noted, the parents do not challenge the trial court’s findings that they

engaged in conduct that endangered Abbie and James.

In a sufficiency review challenging a best-interest finding, no one Holley

factor controls whether the record contains evidence sufficient to support the finding

9 In Holley, the Texas Supreme Court applied these factors when reviewing a best-interest finding: • the child’s desires; • the child’s emotional and physical needs, now and in the future; • the emotional and physical danger to the child, now and in the future; • the parenting abilities of the parties seeking custody; • the programs available to assist the parties seeking custody; • the plans for the child by the parties seeking custody; • the stability of the home or the proposed placement; • the parent’s acts or omissions that reveal the existing parent-child relationship is improper; and • any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 10 In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). 11 Id. at 27. 5 that a parent appealed. 12 For that reason, evidence on just one of the factors in some

cases may provide enough support for the trial court’s finding that terminating the

parent-child relationship is in the child’s best interest. 13

Often, evidence introduced to show the parent engaged in the types of conduct

that violate subsections D, E and O is also relevant to reviewing the sufficiency of

the evidence to support the best-interest finding. 14 The evidence addressing what is

in the child’s best interest may include direct and circumstantial evidence, which

may include subjective factors such as observations the factfinder makes about the

parents when they appear in court. 15 Often, past conduct is relevant to the trial court’s

role in the case when it acts as the trier of fact in deciding whether terminating the

relationship between the parent and the child is in the child’s best interest. 16 In our

review, we examine the evidence that supports the trial court’s finding from the

standpoint of the child, not the child’s parent.17

12 See In re A.P., 184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.). 13 Id. 14 See In re A.M., 495 S.W.3d 573, 581 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). 15 In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). 16 Id. 17 See In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.) (citing In re S.A.P., 169 S.W.3d 685, 707 (Tex. App.—Waco 2005, no pet.)). 6 Analysis

Mother and Father have not disputed the evidence established that they have

a long history of abusing drugs. For example, in his brief Father acknowledges that

the evidence “clearly demonstrates” he “has a substantial history of substance

abuse[.]” He also acknowledges he continued to use methamphetamines until

October 2019, claiming he stopped using them about five months before trial. While

acknowledging he acquired a drug problem, Father makes the same basic argument

he made at trial and suggests that if allowed more time to complete a drug rehab

program, he can free himself from his need to use illegal drugs. Father points to the

evidence that he argues supports his claim that he’s turned the corner. He also relies

on other evidence admitted in the trial that shows that at the time of the trial, he was

living in a trailer with sufficient room for the children and he was working multiple

jobs as a construction worker. Father suggests the trial court erred by concluding his

efforts to free himself from his addiction will not succeed, given the sincere efforts

he has made toward recovering from his addiction.

Like Father, Mother points to the evidence before the trial court that shows

she loves her children, has a safe place for them to live, and has engaged in a drug

rehab program to gain the skills she needs to control the urges she has that have led

her to the use of illegal drugs. That said, Mother acknowledges the record contains

7 evidence showing she ingested illegal substances just five months before the trial.

Mother also acknowledges she has suffered from her addiction to drugs for around

eleven years. Mother argues the trial court erred by refusing to believe her testimony

claiming she has turned the corner and can remain sober given evidence showing

that she was sober at the time of trial. Besides the evidence that she was doing well

in her drug rehab program, Mother relies on testimony showing she has exercised

her rights to visit the children after they were taken from her home. She points to the

evidence in the trial showing she worked diligently to comply with the requirements

of her court-ordered family service plan. While Mother acknowledges she failed to

complete some parts of her plan, she suggests the trial court should have accepted

the excuses she offered in the trial to explain why she could not comply with those

requirements. Mother notes she has a favorable employment history, and we

acknowledge the evidence shows she has worked regularly for the same employer

in a convenience store for the past five years. Based on her income and her current

living arrangements, Mother contends the evidence shows she can now adequately

house the children and provide them with what they need.

Mother also proposed a plan allowing Mother and Father to complete their

drug rehab programs while leaving the children in their current placement with a

relative. Mother suggests that her plan is superior to the one proposed by the

8 Department, a plan asking the trial court to terminate Mother’s and Father’s rights

so the children would be available to be adopted by relatives.

Here, the trial court gave greater weight to the interest Abbie and James have

in a prompt and permanent placement in a safe home over the rights of their parents

to retain their parental rights.18 When the trial court called the case to trial, the

children were living with Father’s brother and sister-in-law. The children had been

in that placement for more than a year. The aunt testified in the trial the children

have a safe place to live, and she described how she and her husband provide the

children with what they need. According to the aunt, she wants to adopt the children,

but if allowed to do so she would still allow the children to see Mother and Father if

they could stay sober and free from drugs. The aunt’s husband (Father’s brother)

confirmed he wants to adopt the children. The uncle explained he did not “want them

to be hurt over and over again by having parents come into their lives and then

getting back on the drugs and then hurting them over and over.” On permanency, the

court-appointed special advocate (CASA) testified that leaving the children “in

limbo is not serving [them] any justice.” The CASA and the caseworker assigned by

the Department to work on the children’s case testified that a ruling terminating

18 See Tex. Fam. Code Ann. § 263.307(a). 9 Mother’s and Father’s parental rights to free them for adoption by relatives would

serve Abbie’s and James’s best interests.

In an appeal challenging a finding of fact, the appellate court will not reverse

the trial court’s ruling when evidence in the trial allowed that court, as the trier of

fact, to form a reasonably firm belief or conviction that terminating a parent’s rights

to parent a child is in the child’s best interest. We conclude the evidence shows that

during Abbie’s and James’s lives, the parents go through cycles of drug abuse,

periods of sobriety, and then relapse. As the trier of fact, the trial court had to balance

the need Abbie and James have for stability, safety and permanency against

Mother’s and Father’s rights. On this record, the manner in which the trial court

struck that balance is not unreasonable. As the factfinder, the trial court could

reasonably discount (if not entirely disbelieve) the parents’ arguments claiming the

evidence they presented established they can successfully complete their drug rehab

programs and maintain sobriety over the periods needed to give Abbie and James a

safe, stable and permanent home.

We find the trial court’s conclusion the Department had a superior plan to the

plans proposed by Mother and Father was reasonable.19 Leaving the children in

limbo while Mother and Father seek to free themselves from their longstanding

19 See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). 10 addictions conflicts with the need each child has for a prompt and permanent

placement in a safe home.20 We conclude the record contains sufficient evidence to

support the trial court’s best-interest findings. 21 We hold Mother’s and Father’s

issues arguing the evidence is insufficient to support the trial court’s best-interest

findings lack merit.

Conclusion

We hold the evidence supports the trial court’s best-interest findings. For that

reason, the trial court’s judgment terminating Mother’s and Father’s parental rights

is affirmed.

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on September 9, 2020 Opinion Delivered October 22, 2020

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

20 See In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.). 21 See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re J.L.,163 S.W.3d 79, 85 (Tex. 2005); J.F.C., 96 S.W.3d at 266. 11