in the Interest of S.M., a Minor

• Court: Court of Appeals of Texas
• Decided: January 18, 2017
• Docket: 05-16-01033-CV
• Status: Published

Opinion

Affirmed as modified; Opinion Filed January 18, 2017.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-16-01010-CV No. 05-16-01033-CV No. 05-16-01034-CV No. 05-16-01035-CV

IN THE INTEREST OF S.N., JR., S.M., H.E., AND K.E., CHILDREN

On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause Nos. DF-11-18595-U, DF-15-06055-U, DF-15-02203-U, and DF-16-01035-U

MEMORANDUM OPINION Before Justices Myers, Stoddart, and Whitehill Opinion by Justice Myers This case concerns the termination of the parent–child relationships between the children

S.N., Jr., S.M., H.E., and K.E. and their mother, K.S.E. Mother brings five issues contending the

trial court erred by terminating the parent–child relationships because (a) the evidence is legally

and factually insufficient to support termination of her parental rights under section

161.001(b)(1)(O) of the Family Code, (b) the evidence is legally and factually insufficient to

support the best interest finding, and (c) the evidence is legally and factually insufficient to

support the appointment of the Department of Family and Protective Services as permanent

managing conservator of the children. Mother asserts that if the evidence is sufficient to support

the appointment of the Department as the managing conservator of K.E., then the judgment must be modified to so provide. We affirm the trial court’s judgments as to S.N., Jr., S.M., and H.E.

In the case involving K.E., we modify the judgment to identify the correct child in the order

terminating the parent–child relationship and to show the Department of Family and Protective

Services is the permanent managing conservator of K.E., and we affirm that judgment as

modified.

BACKGROUND1

The Dallas County Child Protective Services Unit of the Texas Department of Family

and Protective Services (“the Department”) filed petitions for protection of the children,

including for conservatorship and for termination of Mother’s parental rights. The trial court

signed temporary orders naming the Department the temporary managing conservator of the

children.

The trial court also signed orders conditioning return of the children to Mother on her

successfully completing certain services, including parenting classes, a psychological evaluation,

counseling, drug and alcohol assessment and treatment, random drug testing, psychiatric

services, and to follow the recommendations of the service providers. Mother completed one

parenting program, but her psychological evaluation recommended a more intensive parenting

program, which she did not complete. Mother had some negative urinalysis test results, but she

consistently tested positive for cocaine in hair-strand tests. Mother did not successfully complete

drug counseling.

The day before the trial, the parties engaged in mediation to reach agreements on the

cases. Toward the end of the mediation, Mother left unexpectedly. When the parties reached

Mother on the telephone, she was highly emotional but was able to communicate that she wanted

1 The clerk’s records contain affidavits detailing alleged abuse and neglect the children suffered as well as Mother’s mental-health and emotional issues. Neither these affidavits nor similar information was offered into evidence at the trial.

–2– her lawyer to approve the mediated settlement agreements. The agreements provided for

termination of Mother’s parental rights, post-termination supervised visitation with three of the

children, and the right to attend the quarterly gatherings of the four children. Mother did not

attend the trial, and her lawyer said she knew to be present at the court that day. Her lawyer

stated Mother had told him, “Y’all do whatever you want.” He stated that he thought termination

of Mother’s parental rights in accordance with the agreements was in her best interest.

At the conclusion of the trial, the trial court signed orders terminating Mother’s parental

rights with the children. The trial court also ordered the termination of the parental rights of the

fathers of three of the children, and the rights of the unknown father to the fourth child. The

court appointed the Department to be the permanent managing conservator of the children. The

orders incorporated the terms of the mediated settlement agreements, which allowed Mother

post-termination supervised visitation with three of the four children. The agreements and orders

also provided that the children would meet once a quarter and that Mother could attend those

meetings.

STANDARD OF REVIEW

Under the Texas Family Code, parental rights can be terminated only when there is clear

and convincing evidence that the parent has committed an act prohibited by section

161.001(b)(1) and termination is in the best interest of the child. TEX. FAM. CODE ANN. §

161.001(b)(1), (2) (West Supp. 2016). “Clear and convincing evidence” is “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. § 101.007 (West 2014).

In a legal sufficiency challenge, we credit evidence that supports the verdict if a

reasonable factfinder could have done so and disregard contrary evidence unless a reasonable

factfinder could not have done so. In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). However,

–3– we should not disregard undisputed facts that do not support the verdict to determine whether

there is clear and convincing evidence. Id. Even evidence that does more than raise surmise or

suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction

that the allegation is true. Id. If we determine that no reasonable factfinder could form a firm

belief or conviction that the matter to be proven is true, then we must conclude the evidence is

legally insufficient. Id.

In a factual sufficiency review, we must give due consideration to any evidence the

factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d 256,

265–66 (Tex. 2002) (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We must consider the

disputed evidence and determine whether a reasonable factfinder could have resolved that

evidence in favor of the finding. Id. If the disputed evidence is so significant that a factfinder

could not reasonably have formed a firm belief or conviction, then the evidence is factually

insufficient. Id.

TERMINATION OF PARENTAL RIGHTS UNDER § 161.001(B)(1)(O)

In her first and second issues, Mother contends the evidence is legally and factually

insufficient to support terminating her parental rights under section 161.001(b)(1)(O). That

provision authorizes termination when the 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;

and termination is in the best interest of the child. FAM. § 161.001(b)(1)(O), (b)(2).

Mother asserts the evidence was insufficient to prove she was ordered to comply with

services to obtain return of the children and was insufficient to prove the children were removed

from her custody due to abuse or neglect. The caseworker for the Department testified that

–4– Mother failed to comply with orders that she complete services, but Mother contends there is no

evidence that those orders required compliance by Mother for her to obtain the return of the

children or that the children were removed for abuse or neglect.2

The caseworker for the Department testified,

Q. . . . With respect to the mother as it relates to all four of her children, are you asserting to the Court that the mother has failed to comply with the provisions of a court order that specifically establish the actions necessary for the mother to obtain the return of her children who have been in the temporary managing conservatorship of the Department for not less than nine months as a result of the children’s removal under Chapter 262 for abuse or neglect pursuant to Section 161.001, Subsection 1, Subsection O of the Texas Family Code?

A. Yes.

Mother argues the caseworker’s testimony was conclusory and did not constitute evidence. We

disagree. Testimony is conclusory when it consists of conclusions and does not provide the

underlying facts to support the opinion. Rizkallah v.Conner, 952 S.W.2d 580, 587 (Tex. App.—

Houston [1st Dist.] 1997, no writ). Conclusory statements are not susceptible to being readily

controverted. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Although the

caseworker’s testimony tracked the statute, it was not conclusory because it was a statement of

four facts: (1) a court order specifically established the actions necessary for Mother to obtain

return of her children, (2) Mother failed to comply with that order, (3) the children have been in

the custody of the Department for not less than nine months, and (4) the children were removed

from Mother’s custody under Chapter 262 due to abuse or neglect. These are statements of fact,

not mere conclusions. These statements could have been readily controverted by evidence that

the order did not require compliance for return of the children or by evidence that the children

were not removed for abuse or neglect. We conclude the evidence is legally and factually

2 Mother does not contend on appeal that the evidence was insufficient to prove she failed to meet the requirements of the orders or to prove that the children have been in the conservatorship of the Department for not less than nine months.

–5– sufficient to support termination of Mother’s parental rights under paragraph (O) concerning the

elements Mother challenges. We overrule Mother’s first and second issues.

BEST INTEREST OF THE CHILDREN

In her third and fourth issues, Mother contends the evidence is legally and factually

insufficient to prove termination of the parent–child relationships was in the best interest of the

children. Before the court may terminate the parent–child relationship, the court must find by

clear and convincing evidence that termination is in the child’s best interest. See FAM. §

161.001(b)(2). In making this determination, the court considers the factors listed in Holley v.

Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). See In re E.N.C., 384 S.W.3d 796, 807 (Tex.

2012). Those factors are,

(1) the child’s desires;

(2) the child’s emotional and physical needs now and in the future;

(3) any emotional and physical danger to the child now and in the future;

(4) the parental abilities of the individuals seeking custody;

(5) the programs available to assist the individuals seeking custody to promote the best interest of the child;

(6) the plans for the child by the individuals or agency seeking custody;

(7) the stability of the home or proposed placement;

(8) the parent’s acts or omissions which may indicate that the existing parent– child relationship is improper; and

(9) any excuse for the parent’s acts or omissions.

Holley, 544 S.W.2d at 371–72; see E.N.C., 384 S.W.3d at 807. The Department does not have to

present evidence of all the factors to prove termination is in the child’s best interest. See C.H.,

89 S.W.3d at 27.

–6– In this case, there is no evidence of the children’s desires or of their physical and

emotional needs. Nor is there any evidence of any physical or emotional danger to them now or

in the future.

Concerning the parenting abilities of the individuals seeking custody, their plans and the

Department’s plans for the children, and the stability of the proposed placements, the evidence

showed the Department planned to place two of the children, S.N., Jr. and H.E., with a friend of

their father who already had custody of the father’s two other children. The Department had

performed a home study on the friend, and the study was favorable. The friend planned to adopt

S.N., Jr. and H.E. The foster parents of K.E. wanted to adopt him, and the Department approved

of that plan. The paternal grandmother of S.M. wanted to adopt her, and the Department planned

to move forward with that adoption. Although Mother did not sign the mediated settlement

agreements, the Department planned to allow her post-termination contact with the children

provided by the agreements, including exchanges of letters and cards with all the children and

supervised visitation with three of the four children. The agreements also provided that the four

children would visit together quarterly and that Mother could attend those visits.

Concerning Mother’s acts or omissions indicating the parent–child relationship is

improper, the evidence admitted at trial showed Mother consistently tested positive for cocaine

in hair-strand tests. The caseworker testified Mother had “some clean UAs,” which the trial

court could interpret as also meaning Mother had some urinalysis tests that were not “clean.”

Another witness testified that Mother’s Facebook page indicated she had probably engaged in

prostitution. The trial court could conclude from other testimony that Mother did not know who

was the father of one of the children or that she refused to disclose the father’s identity.

Although Mother completed an initial parenting program, she was required to attend an

additional parenting program that was more extensive and hands-on, but she did not complete

–7– this program. She also did not complete the drug-counseling program. Mother’s unexpected

early departure from the mediation the day before the trial, her “extremely emotional” state when

the other parties reached her on the telephone after she left the mediation, her refusal to attend

the trial, and her statement to her lawyer of “Y’all do whatever you want” regarding the children

all indicate she lacks emotional stability. There was no evidence that Mother had any excuse for

these acts and omissions.

There is a strong presumption that a child’s best interest is served by maintaining the

parent–child relationship. In re D.W., 445 S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet.

denied). However, there is also a presumption that prompt placement of the child in a safe

environment is in the child’s best interest. Id. (citing FAM. § 153.131(b) (West 2014);

§ 263.307(a) (West Supp. 2016)). The evidence showed the Department has found families

willing to adopt all the children, while Mother failed to complete the services necessary for

return of her children, continued to use cocaine, and failed to appear at the trial for determining

whether to terminate her parental rights. All of these facts support the trial court’s conclusion

that clear and convincing evidence showed termination of the parent–child relationship was in

the best interest of each of the children.

We conclude the evidence is legally and factually sufficient to support the trial court’s

finding that termination of the parent–child relationships was in the children’s best interest. We

overrule Mother’s third and fourth issues.

CONSERVATORSHIP

In her fifth issue, Mother contends the evidence is legally and factually insufficient to

support the appointment of the Department of Family and Protective Services as permanent

managing conservator of the children. Conservatorship determinations are reviewed for an abuse

of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Therefore, we reverse the trial

–8– court’s appointment of a managing conservator only if we determine it was arbitrary and

unreasonable. Id.

Mother argues she should have been appointed managing conservator of the children

because section 153.131(a) of the Family Code creates “a rebuttable presumption that a parent

will be named a child’s managing conservator unless the court finds that such appointment

would not be in the child’s best interest ‘because the appointment would significantly impair the

child’s physical health or emotional development’ or finds that there is a history of family

violence involving the parents.” See FAM. § 153.131(a). Section 153.131 applies when the

parents’ parental rights have not been terminated. However, when the parents’ parental rights

have been terminated, as in these cases, section 161.207 governs the appointment of a managing

conservator. In that situation, the trial court appoints “a suitable, competent adult, the

Department of Family and Protective Services, or a licensed child-placing agency as managing

conservator of the child.” FAM. § 161.207 (West Supp. 2016). In this case, Mother presented no

evidence that she is “a suitable, competent adult” to become the children’s managing

conservator. See In re N.T., 474 S.W.3d 465, 481 (Tex. App.—Dallas 2015, no pet.).

We conclude the record does not show the trial court abused its discretion by appointing

the Department to be the managing conservator of the children. We overrule Mother’s fifth

issue.

MODIFICATION OF THE JUDGMENT IN 05-16-01035-CV

In cause number 05-16-01035-CV, which concerns the child K.E., the trial court’s

judgment incorrectly orders the termination of Mother’s parental rights to S.N.M. and appoints

the Department permanent managing conservator of S.N.M. Pursuant to rule of appellate

procedure 43.2(b), we modify the judgment in that case to order the termination of the parent–

–9– child relationship between Mother and K.E. and to provide that the Department is appointed

permanent managing conservator of K.E. See TEX. R. APP. P. 43.2(b).

CONCLUSION

We affirm the trial court’s judgments in cause numbers 05-16-01010-CV, 05-16-01033-

CV, and 05-16-01034-CV. In cause number 05-16-01035-CV, we modify the judgment, and we

affirm the trial court’s judgment as modified.

/Lana Myers/ LANA MYERS JUSTICE

161010F.P05

–10– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF S.N., JR., A On Appeal from the 302nd Judicial District CHILD, Court, Dallas County, Texas Trial Court Cause No. DF-11-18595-U. No. 05-16-01010-CV Opinion delivered by Justice Myers. Justices Stoddart and Whitehill participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 18th day of January, 2017.

–11– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF S.M., A MINOR On Appeal from the 302nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DF-15-06055-U. No. 05-16-01033-CV Opinion delivered by Justice Myers. Justices Stoddart and Whitehill participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

–12– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF H.E., A MINOR On Appeal from the 302nd Judicial District Court, Dallas County, Texas No. 05-16-01034-CV Trial Court Cause No. DF-15-02203-U. Opinion delivered by Justice Myers. Justices Stoddart and Whitehill participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

–13– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF K.E., A MINOR On Appeal from the 302nd Judicial District Court, Dallas County, Texas No. 05-16-01035-CV Trial Court Cause No. DF-15-13084-U. Opinion delivered by Justice Myers. Justices Stoddart and Whitehill participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

The trial court’s best-interest finding and the order under the section headed “Termination of the Parental rights of Respondent Mother, Keyera Sakela Eley” are MODIFIED to state, “The Court also finds that termination of the parent- child relationship between the mother, Keyera Sakela Eley, and the child the subject of this suit, King Eley, is in the best interest of the child. IT IS THEREFORE, ORDERED AND DECREED by the Court that the parent-child relationship between the Mother, Keyera Sakela Eley, and the child King Eley, be and is hereby terminated.” The trial court’s order appointing a permanent managing conservator is MODIFIED to state, “IT IS THEREFORE, ORDERED AND DECREED by the Court that the Texas Department of Family and Protective Services is appointed Permanent Managing Conservator of the child, King Eley.”

It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.

–14–