in the Interest of R.N.W. and T.M.W., Children

• Court: Court of Appeals of Texas
• Decided: June 6, 2012
• Docket: 10-11-00441-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-11-00441-CV

IN THE INTEREST OF R.N.W. AND T.M.W., CHILDREN

From the County Court at Law No. 2 Johnson County, Texas Trial Court No. D201000169

MEMORANDUM OPINION

Mary W.1 appeals from a judgment terminating her parental rights to her two

children, R.N.W. and T.M.W. TEX. FAM. CODE ANN. §§ 161.001(1) & 161.003(a) (West

2008). Mary complains that the evidence was legally and factually insufficient to

support the trial court’s findings as to five separate predicate grounds for termination of

her parental rights or that termination was in the children’s best interest. See TEX. FAM.

CODE ANN. § 161.001(1)(D), (E), (O), (P), & 161.003(a) (West 2008). Because we find that

the evidence was legally and factually sufficient to support the trial court’s findings as

to section 161.001(O) for failure to complete her service plan and that termination was

in the children’s best interest, we affirm the judgment of the trial court.

1 Mary is a pseudonym for Appellant. See TEX. R. APP. P. 9.8(b)(1)(B). Burden of Proof

In this proceeding to terminate the parent-child relationship brought under

section 161.001 of the Family Code, the Department of Family and Protective Services

was required to establish one ground listed under subdivision (1) of the statute and to

prove that termination was in the best interest of the children. TEX. FAM. CODE ANN. §

161.001(1); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established;

termination may not be based solely on the best interest of the children as determined

by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

Termination decisions must be supported by clear and convincing evidence.

TEX. FAM. CODE ANN. §§ 161.001, 161.206(a) (West 2008). Evidence is clear and

convincing if it “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. § 101.007. Due process

demands this heightened standard because termination results in permanent,

irrevocable changes for the parent and children. In re J.F.C., 96 S.W.3d 256, 263 (Tex.

2002); see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting standards for

termination and modification).

Legal and Factual Sufficiency

In reviewing the evidence for legal sufficiency in parental termination cases, we

must determine whether the evidence is such that a factfinder could reasonably form a

firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180

In the Interest of R.N.W. and T.M.W. Page 2 S.W.3d 570, 573 (Tex. 2005). We must review all the evidence in the light most favorable

to the finding and judgment and assume that the factfinder resolved any disputed facts

in favor of its finding if a reasonable factfinder could have done so. Id. We must also

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

consider, however, undisputed evidence even if it is contrary to the finding. Id.

It is necessary to consider all of the evidence, not just that which favors the

verdict. J.P.B., 180 S.W.3d at 573. However, we cannot weigh witness credibility issues

that depend on the appearance and demeanor of the witnesses, for that is the

factfinder’s province. Id. at 573-74. And even when credibility issues appear in the

appellate record, we must defer to the factfinder’s determinations as long as they are

not unreasonable. Id. at 573.

In reviewing the evidence for factual sufficiency, we must give due deference to

the factfinder’s findings and not supplant the judgment with our own. In re H.R.M., 209

S.W.3d 105, 108 (Tex. 2006). We must determine whether, on the entire record, a

factfinder could reasonably form a firm conviction or belief that the parent violated the

relevant conduct provisions of section 161.001(1) and that the termination of the parent-

child relationship would be in the best interest of the child. C.H., 89 S.W.3d at 28. 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

In the Interest of R.N.W. and T.M.W. Page 3 reasonably have formed a firm belief or conviction in the truth of its finding, then the

evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

Family Code Section 161.001(O)

In her fifth issue, Mary W. complains that the evidence was legally and factually

insufficient for the trial court to have determined that she did not comply with the

provisions of her service plan because she substantially completed its requirements.

The Family Code provides that parental rights may be terminated if a parent “failed to

comply with the provisions of a court order that specifically established the actions

necessary for the parent to obtain the return of the child who has been in the permanent

or temporary managing conservatorship of the Department of Family and Protective

Services for not less than nine months as a result of the child’s removal from the parent

under Chapter 262 for the abuse or neglect of the child.” TEX. FAM. CODE ANN. §

161.001(1)(O) (West 2008).

We do not consider “substantial compliance” to be the same as completion for

purposes of subsection (O) of the Family Code, nor does that subsection provide for

excuses for failure to complete court ordered services. See In re T.N.F., 205 S.W.3d 625,

630-31 (Tex. App.—Waco 2006, pet. denied) (emphasizing that parents must comply

with every requirement of the court order and that subsection (O) does not allow for

consideration of excuses for noncompliance); In re M.C.G., 329 S.W.3d 674, 675-76 (Tex.

App.—Houston [14th Dist.] 2010, pet. denied); In re T.T., 228 S.W.3d 312, 319 (Tex.

In the Interest of R.N.W. and T.M.W. Page 4 App.—Houston [14th Dist.] 2007, pet. denied) (noting Texas courts have uniformly

found substantial compliance with provisions of court order inadequate to avoid

termination finding under subsection (O)). At most, any excuse for failing to complete a

family service plan goes only to the best interest determination. See T.N.F., 205 S.W.3d

at 631; see also Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976).

The evidence is undisputed that Mary did not complete every requirement of the

service plan. Mary does not challenge the validity of the order or its contents. In the

plan, Mary was required to “comply with taking her medications as prescribed and …

not self medicate with illegal or mind altering substances.” Mary conceded that she had

tested positive for methamphetamine use more than one time during the pendency of

the case, even after completing drug treatment. She admitted to using

methamphetamine regularly. This alone demonstrates that Mary did not complete

every requirement. She also did not receive a certificate of completion for parenting

classes and was discharged by two counselors for failure to attend sessions. The

evidence was legally and factually sufficient to prove that Mary failed to complete her

service plan and therefore, termination was proper pursuant to section 161.001(1)(O).

We overrule issue five.

Further, because it is only necessary that we determine that the evidence was

legally and factually sufficient as to one predicate act under section 161.001(1), we will

not address the sufficiency of the evidence relating to sections 161.001(1)(D), (E), (P), or

In the Interest of R.N.W. and T.M.W. Page 5 section 161.003(a). In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We overrule issues one,

two, four, and six.

Best Interest

In her third issue, Mary argues that the evidence is legally and factually

insufficient to support the trial court’s finding that it was in the children’s best interest

to terminate the parent-child relationship. There are several nonexclusive factors that

the trier of fact in a termination case may consider in determining the best interest of the

child, which include (a) the desires of the child, (b) the emotional and physical needs of

the child now and in the future, (c) the emotional and physical danger to the child now

and in the future, (d) the parental abilities of the individuals seeking custody, (e) the

programs available to assist these individuals to promote the best interest of the child,

(f) the plans for the child by these or by the agency seeking custody, (g) the stability of

the home or proposed placement, (h) the acts or omissions of the parent which may

indicate that the existing parent-child relationship is not a proper one, and (i) any

excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72

(Tex. 1976).

These factors are not exhaustive; some listed factors may be inapplicable to some

cases; other factors not on the list may also be considered when appropriate. In re C.H.,

89 S.W.3d 17, 27 (Tex. 2002). Furthermore, undisputed evidence of just one factor may

be sufficient in a particular case to support a finding that termination is in the best

In the Interest of R.N.W. and T.M.W. Page 6 interest of the child. Id. On the other hand, the presence of scant evidence relevant to

each factor will not support such a finding. Id.

Desires of the Children

Mary’s children, R.N.W. and T.M.W., were approximately ages fourteen and

twelve at the time of the final hearing. Both children had not visited with their mother

in many months due to their mother’s erratic behavior at her last visit. Both children

had expressed that they no longer wished to see Mary or have contact with her. R.N.W.

had stated that if she were returned to Mary’s care, she would not remain but would

run away.

Children’s Needs at Present and in the Future

Both children have been diagnosed with some form of psychological issues and

have had difficulty adjusting to foster care; however, both children have shown

improvement while in foster care. They are placed together with a family that is

interested in adopting them. The children were doing well in school while in foster care

and were participating in extracurricular activities.

While the children lived with Mary, they were placed in a role as a caregiver to

Mary at times. R.N.W. made her own arrangements of where to reside and was not

living with Mary at the time of the removal. Both children had been in counseling

during the pendency of the case and would likely continue afterward. Physically, the

children were clean and healthy while in the care of the Department. While with Mary,

In the Interest of R.N.W. and T.M.W. Page 7 however, at times the children suffered from severe head lice and did not have hot

water in their home. They had difficulties with being truant from school.

Danger to Children Now and in the Future

The children had been exposed to their mother’s use of illegal drugs, irrational

behaviors due to her mental illness, had been given alcohol routinely by their mother,

were exposed to domestic violence and sexual misconduct by Mary, and had problems

with truancy at school. Mary often went off of her prescribed medications which

impaired her ability to function and at times she threatened to kill herself in front of the

children. Much of Mary’s meager SSI income was spent on cigarettes, alcohol, and

illegal drugs. The girls were knowledgeable about drugs and drug paraphernalia from

their mother and uncle.

Parental Abilities of Those Seeking Custody

While Mary did attend parenting classes, she did not demonstrate that her

behavior would change or that she would exhibit good parenting skills. The provider

of the parenting classes refused to give her a certificate of completion due to lack of

progress. Visits with the children were terminated because of Mary’s poor behavior at a

visit and were never restored. Both therapists who had worked with Mary testified that

she would be unable to properly parent the girls, and the psychologist who prepared a

psychological evaluation expressed grave concerns regarding Mary’s mental status and

her ability to parent.

In the Interest of R.N.W. and T.M.W. Page 8 Mary admitted to intermittent long-term illegal drug and alcohol use and that

she had been admitted to a psychiatric hospital during the pendency of the case. She

continued using drugs and drinking even though it interacted with her prescribed

medications. She had given both girls alcohol intermittently over time, at times to put

them to sleep and seemed unconcerned as to the effects on them. It was evident that

while the children were with Mary and if they were to return that Mary would rely

heavily on them to take care of her. As to discipline, Mary stated that if her fourteen-

year-old daughter was disobedient, she would slap her on the hand.

Available Programs

Mary was involved with the Department for approximately five years and had

been involved off and on with MHMR to assist with her mental health issues. She had

completed drug treatment but relapsed within a month of completion. At one point she

had been involved with Adult Protective Services as well.

Plans for the Children

Mary’s plans for the children were to take them back to her home and to

continue as they had prior to the Department’s intervention. The Department,

however, planned to keep the girls with the current foster parents who want to adopt

them.

In the Interest of R.N.W. and T.M.W. Page 9 Stability of the Home or Proposed Placement

While Mary had provided housing to the children, there otherwise was little or

no stability provided and little, if any, progress had been made to improve the stability

of her home or Mary’s ability to provide for herself or the children while the children

were in foster care. Conversely, the children have been placed in one foster home

where the foster parents have expressed a desire to adopt them.

Acts or Omissions of the Parent and Excuses for those Acts or Omissions

Mary’s uncontrolled mental illnesses have led to erratic and irresponsible

behaviors, including poor relationships involving domestic violence and the use of

illegal drugs and alcohol. She exposed the children to dangerous and abusive

situations, which resulted in both children suffering from psychological trauma as well.

She did not maintain consistency in her treatment of her illnesses and did not take her

prescribed medications without breaks. Because her mental state was not stable, the

trial court determined that she was unable to provide a safe and suitable home for the

children.

Taking the above factors into consideration, the evidence was legally and

factually sufficient for the trial court to have found that termination of Mary’s parental

rights was in the best interest of R.N.W. and T.M.W. We overrule issue three.

In the Interest of R.N.W. and T.M.W. Page 10 Conclusion

Having found that the evidence was legally and factually sufficient for the trial

court to have terminated Mary’s parental rights, we affirm the judgment of the trial

court.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed June 6, 2012 [CV06]

In the Interest of R.N.W. and T.M.W. Page 11