in the Interest of S.H., a Child

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-15-00177-CV

IN THE INTEREST OF S.H., A CHILD

On Appeal from the County Court at Law No. 2 Randall County, Texas Trial Court No. 10909-L2, Honorable Jack M. Graham, Presiding

September 16, 2015

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

W.W., the mother of S.H.,1 appeals the trial court’s order terminating her parental

rights to her child. We will affirm the order of the trial court.

Background

S.H., male, was born in February 2014 to W.W.2 In April 2014, the Texas

Department of Family & Protective Services filed pleadings supporting the removal of

1 To protect the child’s privacy, we will refer to the mother and the child by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8(b). 2 The parental rights of the father, L.F., were also terminated in this proceeding. He is not a party to this appeal. W.W. initially named another man as the father of S.H. Genetic testing determined L.F., not the named father, was the biological father. S.H. from his mother’s care. The allegations included drug tests showing both W.W.

and S.H. had methamphetamine in their systems. The Department also alleged physical

abuse and neglectful supervision of S.H. by W.W. due to her drug use and that of her

parents, with whom she and the child were staying. The two-month-old S.H. was

removed from W.W.’s care and at the time of the final hearing, S.H. was living with his

maternal aunt and uncle.

The trial court held a final hearing in March 2015. After hearing the testimony of

a Department investigator, a Department caseworker, and W.W., the trial court found

clear and convincing evidence to support termination of W.W.’s parental rights to S.H. 3

and also determined there was clear and convincing evidence that termination of

W.W.’s parental rights was in the child’s best interests.4 This appeal followed.

Analysis

By three issues, W.W. challenges the factual sufficiency of the evidence

supporting the trial court’s findings authorizing termination. Because the legal

sufficiency of the evidence supporting the trial court’s findings is unchallenged, we will

limit our analysis to that of factual sufficiency.

The Constitution protects “[t]he fundamental liberty interest of natural parents in

the care, custody, and management” of their children. Santosky v. Kramer, 455 U.S.

3 The trial court found the evidence supported termination under Family Code sections 161.001(1)(D), (E), (N), (O), and (P). See TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (N), (O), (P) (West 2014). We note the statute was amended after this case was heard to renumber the sections. The current relevant sections are TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O), (P) (West 2015). See Act of April 2, 2015, 84th Leg., R.S., S.B. 219, art. 1, §1.078. 4 See TEX. FAM. CODE ANN. § 161.001(2) (West 2014) (enacted April 2, 2015).

2 745, 753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); Holick v. Smith, 685 S.W.2d 18, 20

(Tex. 1985). Parental rights, however, are not absolute, and courts have recognized it

is essential that the emotional and physical interests of a child not be sacrificed merely

to preserve the parental 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 of the Texas

Family Code require application of the heightened standard of clear and convincing

evidence in cases involving involuntary termination of parental rights. In re E.N.C., 384

S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Clear and

convincing evidence is that measure or degree of proof which 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. TEX. FAM. CODE ANN. § 101.007 (West 2014); In re C.H., 89 S.W.3d at 25-

26.

In a factual sufficiency review, a court of appeals must give due consideration to

the evidence the factfinder could reasonably have found to be clear and convincing. In

re C.H., 89 S.W.3d at 25. We 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. In doing so we consider whether disputed evidence is such that a

reasonable factfinder could not have resolved that 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. In re J.F.C., 96 S.W.3d at 266.

3 The Family Code permits a trial court to terminate parental rights if the

Department proves by clear and convincing evidence that the parent committed an

action prohibited under section 161.001(1) and termination is in the child's best

interests. TEX. FAM. CODE ANN. § 161.001(1), (2) (West 2014); Holley v. Adams, 544

S.W.2d 367, 370 (Tex. 1976). Only one predicate finding under section 161.001(1) is

necessary to support an order of termination when there is also a finding that

termination is in a child's best interests. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In

re T.N., 180 S.W.3d 376, 384 (Tex. App.—Amarillo 2005, no pet.). Thus a termination

order may be affirmed if it is supported by legally and factually sufficient evidence of any

statutory ground on which the trial court relied for termination, and the best interest

finding. In re E.A.G., 373 S.W.3d 129, 141 (Tex. App.—San Antonio 2012, pet. denied).

As noted, appellant does not challenge on appeal the legal sufficiency of the evidence

to support the trial court’s order of termination.

Subsection (E) of section 161.001(1) permits termination when clear and

convincing evidence shows that the parent has engaged in conduct or knowingly placed

the child with persons who engaged in conduct that endangers the physical or

emotional well-being of the child. TEX. FAM. CODE ANN. § 161.001(1)(E). Within the

context of section 161.001(1)(E), endangerment encompasses “more than a threat of

metaphysical injury or the possible ill effects of a less-than-ideal family environment.” In

the Interest of K.C.F., No. 01-13-01078-CV, 2014 Tex. App. LEXIS 6131, at *32-34

(Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.) (citation omitted).

Instead, “endanger” means to expose a child to loss or injury or to jeopardize a child's

emotional or physical health. Id.; see In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).

4 It is not necessary to establish that a parent intended to endanger a child in order

to support termination of the parent-child relationship under subsection (E). See In re

M.C., 917 S.W.2d at 270. However, termination under subsection 161.001(1)(E)

requires “more than a single act or omission; a voluntary, deliberate, and conscious

course of conduct by the parent is required.” In re J.T.G., 121 S.W.3d 117, 125 (Tex.

App.—Fort Worth 2003, no pet.). The specific danger to the child's well-being may be

inferred from parental misconduct standing alone. Tex. Dep’t of Human Servs. v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort

Worth 2004, pet. denied).

The statute does not require that conduct be directed at a child or cause actual

harm; rather, it is sufficient if the parent's course of conduct endangers the well-being of

the children. Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617

(Tex. App.—Houston [1st Dist.] 2009, pet. denied). Furthermore, the conduct does not

have to occur in the presence of the child. Id. The conduct may occur before the child's

birth and both before and after the child has been removed by the Department. Id. A

parent's past endangering conduct may create an inference that the parent’s past

conduct may recur and further jeopardize a child’s present or future physical or

emotional well-being. In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no

pet.).

The main concern in this case is W.W.’s long history of drug use. W.W. began

using methamphetamine during her teen years. At the time of the final hearing, she

was almost 29 years old. While she had completed some rehabilitation programs, she

continued to use drugs and tested positive for methamphetamine and marijuana during

5 a prior Department investigation involving another child.5 And, in March 2014, both she

and S.H. tested positive for methamphetamine. A Department investigator testified the

positive drug test was the reason for S.H.’s removal from W.W.’s care. W.W. told the

court she did not have an explanation for S.H.’s positive drug screen and denied using

methamphetamine around the child. But the trial court could have concluded from the

evidence of W.W.’s use of methamphetamine and S.H.’s positive drug test that the child

had been exposed to the drug via methamphetamine use in the home. See In re H.D.,

No. 01-12-00007-CV, 2013 Tex. App. LEXIS 5699 (Tex. App.—Houston [1st Dist.] May

9, 2013, no pet.) (affirming judgment terminating mother’s parental rights under

subsection (E) based on evidence of mother’s drug use, even though mother claimed

drugs not used in children’s presence). The caseworker testified to W.W.’s admitted

drug use and testified to W.W.’s failure to complete the services set forth in her service

plan, including those related to achieving sobriety.

W.W. testified at the hearing she was a “drug addict.” As noted, S.H. was

removed from W.W.’s care in April 2014. W.W. was arrested the next month for

possession of methamphetamine and remained in jail until July 2014, when she posted

bond. She returned to jail in September and, on arrival, was found to be in possession

of methamphetamine. She was later sentenced to a term of years in prison with a

projected release date of September 2016. She was eligible for parole 22 days after the

final hearing. W.W. testified her criminal history included a conviction for possession of

marijuana in 2007. Also, a behavioral health services screening conducted on W.W.

5 That child was removed from W.W.’s care due to W.W.’s drug use and was placed with a family member. W.W. maintains the right to have supervised visits with that child.

6 and admitted into evidence showed the screener’s conclusion that W.W. “does appear

to meet DSM IV criteria for dependence based on: lack of control; inability to abstain;

continued use knowing harm; and withdrawal . . .” . From the evidence presented, the

trial court reasonably could have reached a firm conviction W.W. had pursued a course

of conduct, through her chronic drug use, that endangered S.H.’s physical and

emotional well-being. See Walker, 312 S.W.3d at 617 (illegal drug use may support

termination under subsection 161.001(1)(E) because “it exposes the child to the

possibility that the parent may be impaired or imprisoned)”.

The trial court could have further determined that W.W.’s arrest for possession of

methamphetamine a month after S.H. was removed demonstrated the risk W.W. would

continue to pursue an endangering course of conduct if he were placed back in her

care. See In re A.H., No. 02-06-00064-CV, 2006 Tex. App. LEXIS 8432, at *8 (Tex.

App.—Fort Worth Sept. 28, 2006, no pet.) (mem. op.) (noting that stability and

permanence are paramount in the upbringing of children, that an endangering

environment can be created by a parent’s involvement with an illegal drug, and that a

factfinder may infer from past conduct endangering the children’s well-being that similar

conduct will recur if the children are returned to the parent). The court could have

considered that such a risk was present despite appellant’s testimony of her

rehabilitation while incarcerated, which testimony we summarize in our discussion of

best interests.

Appellant argues the evidence in this case is comparable with that adduced in In

the Interest of D.J.J., 178 S.W.3d 424 (Tex. App.—Fort Worth 2005, no pet.), in which

the parental rights of a father were terminated. Id. at 430. The argument disregards the

7 presence of methamphetamine in the bodies of W.W. and her infant son at the time of

his removal. Given that evidence, the trial court reasonably could have found incredible

W.W.’s denial that she used the drug around the child. And the drug’s presence in his

body demonstrates actual injury to the child, not merely a threat to his physical well-

being. We conclude that, viewed in light of the entire record, the disputed evidence

could have been reconciled in favor of the trial court’s endangerment determination or

was not so significant as to preclude the trial court’s reasonable formation of such a

belief or conviction. Accordingly, we find the evidence was factually sufficient to support

the subsection (E) finding.6 See TEX. FAM. CODE ANN. § 161.001(1)(E). We overrule

W.W.’s first two issues by which she challenges the factual sufficiency of the evidence

supporting the trial court’s findings.

We turn next to appellant’s challenge of the sufficiency of the evidence

supporting the trial court’s best interests finding. There is a strong presumption that

keeping a child with a parent is in the child's best interests. In re R.R., 209 S.W.3d

112,116 (Tex. 2006). But prompt and permanent placement of the child in a safe

environment is also presumed to be in his best interests. TEX. FAM. CODE ANN. §

263.307(a) (West 2008). The best interests analysis evaluates the best interests of the

child, not that of the parent. In the Interest of A.C.B., 198 S.W.3d 294, 298 (Tex. App.—

Amarillo 2006, no pet.). The following factors may be considered in determining the best

interests of the child: (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)

6 Having determined the record contains evidence sufficient to sustain the subsection (E) ground, we need not address the evidence supporting the remaining grounds also found by the court.

8 the programs available to assist these individuals to promote the best interests of the

child; (F) the plans for the child by these individuals 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, 544 S.W.2d at 371-

72.

By the time of the final hearing, S.H. was just over a year old, too young to

express his own desires. The factfinder may consider whether the child has bonded

with the foster family, is well-cared for by them, and has spent minimal time with a

parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

The record shows S.H. is doing very well living with his aunt and uncle. He “has

bonded to his maternal aunt, and he is doing really good.” The aunt and uncle plan to

adopt S.H. This factor weighs in favor of termination of W.W.’s rights.

Most notable, however, is the evidence, including the testimony of W.W. herself,

showing W.W.’s long history of drug abuse. She used drugs both before and after her

son’s removal. She testified to previous failed attempts at rehabilitation and also

testified to her arrests, convictions and incarceration for possession of controlled

substances. This is a significant factor weighing in favor of termination. See In the

Interest of T.L.R., No. 14-14-00812-CV, 2015 Tex. App. LEXIS 3242, at *22-23 (Tex.

App.—Houston [14th Dist.] Apr. 2, 2015) (mem. op.) (citation omitted) (parent’s drug

use supports a finding that termination is in the best interests of the child).

9 The caseworker testified W.W. had not seen S.H. since August 2014 and had not

made any child support payments. But W.W. did write letters to S.H., requested pictures

of him, and asked the caseworker about him. Nevertheless, W.W. was incarcerated for

most of the pendency of this case, had a projected release date of September 2016,

and had not shown the ability, outside of incarceration, to remain sober, to refrain from

committing criminal offenses, to obtain and maintain employment, or to properly care for

S.H. The caseworker admitted the Department had no plans to move S.H. from his

aunt’s home even if W.W.’s parental rights were not terminated but believed it was in

S.H.’s best interests to achieve permanency. The trial court could have seen this

evidence as support for a finding that termination, rather than permanent managing

conservatorship to W.W. or the aunt and uncle, was in S.H.’s best interests.

W.W. told the court she attempted to begin some of the services required in her

service plan. She testified she contacted the counselor and a rehabilitation facility but

both had waiting lists. She was able to attend one counseling session. Also, she “set

up a psych evaluation” but the “waiting list was . . . four or five months long.” She

admitted she had not completed any services, other than a parenting class and a peer

health education course, but attributed it to the long waiting lists. But, she also told the

court she was on her ninth week and fourth step in a 12- step program. She testified,

“It’s great. It’s really working—it working a lot better than the—even the rehabilitation

that I had in the past.” She also told the court she attends church at the unit and “[e]very

time it’s offered I go . . . to NA or AA.” She testified that about “five or six months ago”

she realized she had “changed . . . really changed [her] outlook on life.” She told the

court that after release she plans to attend 180 NA or AA meetings in 90 days to keep

10 sober. She also plans to attend church every week and to “work two jobs to keep

[herself] busy and to pay [her] child support . . . ”. It was for the trial court, however, to

weigh these recent and commendable improvements in W.W.’s outlook and behavior

against the other evidence it heard bearing on the best interests of the child. See In re

J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) (“[w]hile recent improvements made by [the

parent] are significant, evidence of improved conduct, especially of short-duration, does

not conclusively negate the probative value of a long history of drug use and

irresponsible choices.”).

And, even with the recent improvements, appellant’s testimony indicated the

benefit to S.H. would be postponed until some time in the future. W.W. told the court

she plans to live in a halfway house for a period of time if she is granted parole. She

told the court she needs the structure and stability offered there and has already written

a facility and been accepted. In the meantime, she asked the court to allow her sister

and brother-in-law to care for S.H. so that she doesn’t “lose [S.H.] completely.” She

admitted it wasn’t “fair” to put S.H. “what [she’s] put [him] through” and she did not

expect to see S.H. for several months after her release. The trial court could have seen

the evidence that several months would pass before appellant could effectively parent

S.H. as further indicating termination was in his best interests.

The Department caseworker and the child’s volunteer advocate expressed

opinions it was in S.H.’s best interests that W.W.’s parental rights be terminated.

We conclude that, viewed in light of the entire record, any evidence that could not

have been reconciled in favor of the trial court’s best-interests finding was not so

11 significant as to preclude the court’s firm belief or conviction the finding was true. The

evidence was factually sufficient, and we overrule W.W.’s third issue.

Conclusion

Having determined sufficient evidence supports the trial court's predicate ground

and best interests findings, we affirm its order.

James T. Campbell Justice