in the Interest of R.B., a Child

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

Nos. 07-17-00187-CV 07-17-00188-CV

IN THE INTEREST OF R.B. AND A.D.T., CHILDREN

On Appeal from the 100th District Court Carson County, Texas Trial Court Nos. 11616 & 11617, Honorable Stuart Messer, Presiding

October 19, 2017

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

This is an appeal from final orders terminating the parental rights of A.R.T. to

R.B. and A.D.T. A.R.T questions the legal and factual sufficiency of the evidence

underlying the trial court’s finding that termination was in the best interests of the

children and warranted under § 161.001(b)(1)(E) of the Texas Family Code. We affirm.

Standard of Review

The pertinent standards of review are those discussed in In re L.P., No. 07-17-

00155-CV, 2017 Tex. App. LEXIS 8924 (Tex. App.—Amarillo Sept. 20, 2017, no pet. h.)

(mem. op.). We apply them here. Statutory Ground for Termination

The trial court found “by clear and convincing evidence that [A.R.T.] . . . engaged

in conduct or knowingly placed the child with persons who engaged in conduct which

endangers the physical or emotional well-being of the child, pursuant to § 161.001

(b)(1)(E), Texas Family Code.” A.R.T. contends that, while she may have engaged in

an instance of conduct endangering her children, she “did not engage in a course of

conduct, or knowingly place the child with persons who engaged in conduct that

endangered the child’s physical health or emotional development.” We disagree.

Parental rights may be ended under § 161.001(b)(1)(E) of the Family Code if the

parent engaged in conduct or knowingly placed the child with persons who engaged in

conduct which endangered the physical or emotional well-being of the child. In re

T.R.C., No. 07-15-00389-CV, 2016 Tex. App. LEXIS 3110, at *7 (Tex. App.—Amarillo

Mar. 25, 2016, no pet.) (mem. op.). Both the parent’s acts and omissions may be

considered in determining whether this statutory provision warrants termination. Id.

Yet, A.R.T. is correct; one act or omission of the parent is not enough. Rather,

the evidence must illustrate a voluntary, deliberate and conscious course of conduct

that endangers the child. Id. For instance, endangerment may arise from evidence

establishing a course of conduct that subjects the child to a life of uncertainty and

instability. R.R. v. Tex. Dep’t of Family & Protective Servs., No. 03-16-00528-CV, 2016

Tex. App. LEXIS 11864, at *5-6 (Tex. App.—Austin Nov. 3, 2016, no pet.) (mem. op.).

A parent’s engagement in criminal activity that risks incarceration also falls within that

category. Id. at *6. So too may a parent’s use of drugs in a manner affecting her ability

to actually parent the child qualify as sufficient endangerment. Id. at *6-7; accord In re

2 J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (stating that “[w]e . . . agree that a parent’s

use of narcotics and its effect on his or her ability to parent may qualify as an

endangering course of conduct”).

And, while A.R.T. suggests that the pertinent time frame viewed by the court is

that transpiring before removal, she is mistaken here. Viewing the circumstances

through such a limited window may apply to terminations under § 161.001(b)(1)(D) of

the Family Code, See, e.g., Ybarra v. Tex. Dep’t of Human Servs., 869 S.W.2d 574, 577

(Tex. App.—Corpus Christi, 1993, no writ) (so stating), but not under subsection (E).

The former provision focuses on whether the parent allowed the child to remain in

conditions and surroundings that endangered the child’s physical or emotional well-

being. TEX. FAM. CODE ANN. § 161.001(b)(1)(D) (stating that termination may be

ordered where the parent “knowingly placed or knowingly allowed the child to remain in

conditions or surroundings which endanger the physical or emotional well-being of the

child”). That is, it focuses on the child’s living environment before removal. In re

A.M.B., No. 01-14-00322-CV, 2014 Tex. App. LEXIS 13450, at *10 (Tex. App.—

Houston [1st Dist.] 2014, no pet.). So, logically, evidence of the child’s surroundings

after removal has little relevance under (D).1 The same is not true of the triggering

factors of (E), though.

As previously mentioned, it takes a course of conduct evincing endangerment to

satisfy (E). Establishing such a course of conduct necessarily implicates both a timeline

1 This is not to say, though, that the likelihood of the objectionable environment continuing if the child were eventually returned to the parent is irrelevant to the overall decision to terminate parental rights. Termination is founded upon satisfaction of two elements, i.e., proof of a statutory condition authorizing termination and proof that termination is in the best interests of the child. In re J.O.A., 283 S.W.3d at 345. The potential for the child being returned to an environment endangering his or her well- being is quite relevant to the topic of the child’s best interests.

3 or time period and more than one act occurring within it. It denotes ongoing conduct

that exposes the child to risks and uncertainties, as opposed to a snapshot of the

environment in which the child lived before removal. Furthermore, instances of a

parent’s bad acts occurring after removal of the child from the home continue to fill in

the timeline. That is, they further prove the course of conduct considered detrimental to

the child; they also prove its ongoing nature and the continued risk facing the child if

returned to the parent. So, evidence of misconduct after removal of the child should be

considered in assessing whether the requisites of (E) have been met. In re S.R., 452

S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also In re K.P.,

498 S.W.3d 157, 171-72 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (citing In re

S.R. and noting that the parent’s conduct after the Department takes custody of the

child may be considered under (E)).

Finally, the authority cited by A.R.T. to suggest that the tenets of (E) may only be

satisfied via evidence of what a parent did before removal is actually unfounded. Each

case she mentioned, e.g., In re J.K.F., 345 S.W.3d 706 (Tex. App.—Dallas 2011, pet.

dism’d), and In re C.L.C., 119 S.W.3d 382 (Tex. App.—Tyler 2003, no pet.), cite to a

common origin for the proposition. That origin is the Ybarra opinion cited earlier. Yet,

Ybarra involved termination based on grounds akin to (D), not (E). It dealt with the

precursor of § 161.001(b)(1)(D), or what was then numbered as § 15.02(1)(D) of the

Family Code. Like the former, the latter provision authorized termination when a parent

“knowingly place[d] or knowingly allow[ed] a child to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child.” Ybarra

v. Tex. Dep’t of Human Servs., 869 S.W.2d at 577. Given these circumstances, Ybarra

4 did not purport to address the statutory scenario implicated in J.K.F. and C.L.C. So, it

could not serve as authority for the statements uttered in J.K.F. and C.L.C. That being

said, we turn to the case at bar.

The record before us contains evidence that A.R.T. was the mother of both R.B.

and A.D.T. She also married R.T. while pregnant with A.D.T., even though he was not

the biological father of either child. By then, R.B. was about thirteen years old.

R.T. began ingesting methamphetamine sometime before coming to live with the

family. A.R.T. became aware of this, permitted him to remain, but allegedly told him to

stop. So too did R.T. smoke marijuana, a fact of which A.R.T. also knew. When asked

at trial whether she allowed him to keep marijuana in the house, she replied no and that

he kept it in his truck.

The incident precipitating removal of the children involved methamphetamine.

Despite her supposed objection to the drug, she said R.T. “conned” her into taking the

substance. Allegedly he convinced her that it would allow them to have highly satisfying

sex. So, she agreed, ingested the substance at least twice over what would be called a

three-day “bender.”

A.D.T. was in the possession and care of A.R.T. during that extended “bender,”

as was R.B. who would journey in and out to a friend’s home. Soon, though, A.R.T. and

R.T began exhibiting psychosis. They not only came to believe that A.R.T. was

possessed by demons but also thought an airplane had sprayed the home with a white

substance. The substance supposedly entered the home via air conditioning ducts and

began to cause sores on the children. Later investigation of the premises by law

5 enforcement officials would reveal no white substance in the home or sores on the

children.

There came a point during the same “bender” where A.R.T. grabbed A.D.T. who

slept nearby. Believing that the child was not breathing, she began shaking the several-

month-old infant.

Law enforcement authorities personally witnessed aspects of A.R.T.’s conduct

after R.T. called them to the scene. This led them to initiate removal of the children

from the premises.

Though A.R.T suggested that she did not abuse drugs, other evidence

contradicted that. For instance, she told R.T. she sampled methamphetamine after

leaving high school some years earlier. R.T. also testified that she would acquire

marijuana herself on occasion. The eldest child also described how R.T. and A.R.T.

journeyed outside the house to smoke marijuana and cigarettes while leaving the

thirteen-year-old to care for A.D.T. Additionally, A.R.T.’s counselor suspected that

A.R.T. had taken methamphetamine more than once. Another counselor stated that

A.R.T. “appeared high” during one of her visits with the children after their removal. He

described her as “so animated.” So too did he hear her repeatedly utter “it’s 2017 and

there’s going to be no questions asked” during the visit; he knew not what she meant by

the statement. Other evidence indicated that A.R.T. and R.T. smoked marijuana

together not only after the children were removed from the home but also when

reunification was attempted.2

We further note the evidence that R.T. was not the only person who used drugs

and with whom A.R.T. associated. Nor was R.T. the only person who took meth and 2 The children were removed once again upon discovery of this.

6 was permitted by A.R.T. to be in the presence of the children. According to her,

A.D.T.’s biological father was a “meth addict” who came to see the child for a brief time.

Evidence of A.RT.’s historic association with others who abused marijuana and

methamphetamine, her own abuse of methamphetamine and marijuana when the

children were under her supervision, her leaving a newborn infant in the care of R.B.

when she (A.R.T.) and R.T. smoked marijuana, her shaking A.D.T. while experiencing

drug-induced psychosis, her subsequent appearance before a counselor while seeming

to be “high,” her authorizing R.T. to keep drugs in his truck, and her continued use of

controlled substances after the children were removed is evidence allowing a

reasonable fact-finder to form a firm conviction and belief that A.R.T. engaged in a

course of conduct that endangered the physical or emotional well-being of both A.D.T.

and R.B. Moreover, the disputed evidence was not so significant as to prevent the fact-

finder from arriving at that conclusion. Thus, the statutory finding of the trial court was

neither legally nor factually insufficient.

Best Interests of the Child

Merely finding a statutory ground warranting termination does alone not authorize

the trial court to end the parent-child relationship. Termination must also be in the best

interests of the child. TEX. FAM. CODE ANN. § 161.001(b)(2). We stress that it is the best

interests of the child, not the parent. So, while a parent may want to maintain the

relationship and strive to improve himself, that is not determinative; the child’s best

interests control.

There is no definitive test for deciding when termination is in the child’s best

interests. However, the non-exclusive factors first itemized in Holley v. Adams, 544

7 S.W.2d 367, 371-72 (Tex. 1976), help guide our inquiry. In re A.M., No. 07-17-00094-

CV, 2017 Tex. App. LEXIS 8994, at *6 (Tex. App.—Amarillo Sept. 21, 2017, no pet. h.)

(mem. op.) (per curiam). In lieu of further lengthening this opinion by individually

mentioning those factors here, we opt to consider them in relation to the evidence of

record.

First, we include into the mix the evidence of A.R.T.’s course of conduct that

endangered her children. See id. (stating that evidence satisfying the statutory ground

for termination is relevant when assessing the child’s best interests). To that we add

the evidence that 1) the children were placed with foster parents after removal from

A.R.T.; 2) the foster parents have expressed interest in adopting both children if none of

the children’s relatives cared to; 3) R.B. was about fifteen years old at the time of

termination and wished to remain in the school she has attended while in the care of her

foster parents; 4) R.B. moved to three different schools during the ten-week period she

was reunified with A.R.T. and R.T.; 5) R.B. is involved in activities at the school she

attends while in foster care; 6) a therapist stated that it would not be in R.B.’s best

interest to be returned to her mother and agreed that it could be “devastating to herself

esteem and her ability to survive;” 7) R.B. provided “a lot of” the caregiving to her baby

sister while living with their mother; 8) A.D.T. would seek consolation or protection from

R.B. as opposed to A.R.T. during visitations after removal; 9) at the last supervised

visitation, R.B. appeared to be the parent while attempting to console A.R.T. who was

emotional; 10) A.R.T. often ignored the directions of the therapist supervising the

parent/child visitations after the children were removed; 11) R.T. interacted better with

the children than did A.R.T. during their supervised visitations; 12) the needs of the

8 children were being met while in their current placement; 13) the children appeared

happy in their current placement; 14) A.R.T. had a history of depression and anxiety;

15) A.R.T.’s counselor initially diagnosed A.R.T. as “either delusional or in denial

regarding her drug use[] and that . . . she had a dual diagnosis of mental illness and

chemical dependency;” 16) A.R.T suffered from “engrained” narcissistic personality and

displayed grandiosity; 17) A.R.T. tended not to accept responsibility for her actions; 18)

A.R.T. had not filled the medication prescribed to her to combat her mental issues for

approximately a year before trial; 19) A.R.T.’s personality and attitude improved little

until the trial date neared; and 20) A.R.T.’s counselor had “concerns” about A.R.T.

continuing to be a parent with “legal rights” while A.R.T. was not taking her medication.

Other evidence disclosed that A.R.T. would tend to compete with R.B. during

their visitations rather than attempt to support the child. Finally, when asked whether

she would allow her own children to live with A.R.T., the latter’s counselor said “no.”

The totality of this evidence is sufficient to permit a fact-finder to reasonably form

a firm conviction and belief that termination of A.R.T.’s parental rights was in the best

interests of the children. Moreover, the disputed evidence was not so significant as to

prevent the fact-finder from arriving at that conclusion. Thus, the trial court’s finding that

termination was in the best interests of the children had both legally and factually

sufficient evidentiary support.

Both issued raised by A.R.T. are overruled. We affirm the final orders

terminating A.R.T.’s parental rights to R.B. and A.D.T.

Brian Quinn Chief Justice