in the Interest of S.S., a Child

• Court: Court of Appeals of Texas
• Decided: February 6, 2020
• Docket: 07-19-00309-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-19-00309-CV

IN THE INTEREST OF S.S., A CHILD

On Appeal from the 100th District Court Hall County, Texas Trial Court No. 7833; Honorable Stuart Messer, Presiding

February 6, 2020

MEMORANDUM OPINION Before PIRTLE, PARKER, and DOSS, J.J.

Appellants, Stephen and Ashley appeal the trial court’s order terminating their

parental rights to S.S., their four-year old daughter.1 Via several issues, Stephen argues

the evidence was insufficient to support the grounds on which the trial court terminated

his parental rights and was insufficient to support the trial court’s finding under the Texas

Family Code that it was in S.S.’s best interest to terminate his parental rights. Through

one issue, Ashley asserts the evidence was insufficient to support the trial court’s finding

1 To protect the privacy of the parties involved, we refer to the mother and father by their first name only and to the child by her initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2018); TEX. R. APP. P. 9.8(b). under the Texas Family Code that it was in S.S.’s best interest to terminate her parental

rights. We affirm the order of the trial court.

BACKGROUND

The Texas Department of Family and Protective Services became involved with

the family in November 2017 when it received a report of negligent supervision of S.S.

and that Ashley and Stephen were using methamphetamine and engaging in domestic

violence. When an investigator went to the home, he learned that Ashley was receiving

treatment at a local in-patient mental health facility because she had attempted to cut

herself in the neck with a piece of glass. When the investigator later spoke with Ashley,

she admitted she and Stephen used methamphetamine and that the two had a history of

domestic violence. Ashley submitted to a drug screen and the result was positive for

methamphetamine. S.S. was also tested. Her results were negative. Stephen did not

appear for his initial drug screening but later submitted to one. That drug screen result

was not available at the time of the final hearing held in the summer of 2019.

Neither Ashley nor Stephen appeared for the final hearing. Both of their attorneys

were present and told the court each party had received notice of the hearing. The

attorneys also told the court of their efforts to communicate with the parents. The

attorneys told the court that Ashley was living in Florida and that Stephen had been living

in Oklahoma but had recently returned to Texas. At the time of the final hearing, S.S.

was living with a maternal aunt in New York and was doing very well and had bonded to

the family. According to the Department witnesses, both parents were happy with that

placement and wanted the child to remain there. The aunt expressed a desire to adopt

S.S.

2 The Department called as witnesses three employees of the Department: two

investigators and a case worker. Department personnel testified the mother continued to

use methamphetamine throughout the pendency of the case. The mother had a history

of mental health issues and time spent at the local mental health treatment facility. The

parents did not visit S.S., did not stay in contact with S.S., did not inquire as to S.S.’s well-

being, and did not make required child support or medical payments for S.S. Department

personnel also testified that both parents signed a service plan that included the tasks

necessary to secure return of S.S. to their care. Neither parent completed those tasks.

The father completed an anger management class and submitted to drug screening. He

also completed a psychiatric evaluation but did not participate in any of the

recommendations following that evaluation.

All of the witnesses and the attorney ad litem for S.S. recommended termination

of Ashley’s and Stephen’s parental rights because it was in S.S.’s best interest. At the

conclusion of the hearing, the court found sufficient evidence to terminate the parents’

parental rights under several predicate grounds contained in the Texas Family Code. See

TEX. FAM. CODE ANN. § 161.001(b)(1)(B), (D), (E), (F), (N), (O), (P) (West 2019). It also

found clear and convincing evidence to support a finding that termination of the parents’

rights was in S.S.’s best interest. Id. at § 161.001(b)(2).

STANDARD OF REVIEW

The natural right existing between parents and their children is of constitutional

dimension. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed.

2d 599 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Accordingly, termination

proceedings are strictly construed in favor of the parent. In re E.R., 385 S.W.3d 552, 563

3 (Tex. 2012). Parental rights, however, are not absolute, and it is essential that the

emotional and physical interests of a child are not sacrificed merely to preserve those

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 require application of the heightened standard

of “clear and convincing evidence” in cases involving involuntary termination of parental

rights. See 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).

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

reasonable jurors could have done so and disregard contrary evidence unless reasonable

jurors could not have done so. In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014).

However, the reviewing court should not disregard undisputed facts that do not support

the verdict to determine whether there is clear and convincing evidence. Id. at 113. In

cases requiring clear and convincing evidence, evidence that does nothing more than

raise surmise and suspicion will not suffice unless that evidence can produce in the mind

of the fact finder a firm belief or conviction that the allegation is true. Id. If, after

conducting a legal sufficiency review, a court determines that no reasonable fact finder

could form a firm belief or conviction that the matter that must be proven is true, then the

evidence is legally insufficient. Id. (citing In re J.F.C., 96 S.W.3d at 266).

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

evidence that the fact finder could reasonably have found to be clear and convincing. In

re J.F.C., 96 S.W.3d at 266 (citing In re C.H., 89 S.W.3d at 25). We must determine

whether the evidence is such that a fact finder could reasonably form a firm belief or

conviction about the truth of the Department’s allegations. Id. We also consider whether

4 disputed evidence is such that a reasonable fact finder could not have resolved the

disputed evidence in favor of its finding. Id. If, considering the entire record, the disputed

evidence that a reasonable fact finder could not have credited in favor of the finding is so

significant that a fact finder could not reasonably have formed a firm belief or conviction,

then the evidence is factually insufficient. Id.

The Texas Family Code permits a court to terminate the relationship between a

parent and a child if the Department establishes one or more acts or omissions

enumerated under section 161.001(b)(1) and that termination of that relationship is in the

best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1), (2); Holley v. Adams,

544 S.W.2d 367, 370 (Tex. 1976). The burden of proof is by clear and convincing

evidence. TEX. FAM. CODE ANN. § 161.206(a). “‘Clear and convincing evidence’ means

the measure or degree of 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. at § 101.007.

Only one statutory ground is required to support termination. In re K.C.B., 280

S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009, pet. denied). Although evidence

presented may be relevant to both the statutory grounds for termination and best interest,

each element must be established separately and proof of one element does not relieve

the burden of proving the other. See In re C.H., 89 S.W.3d at 28.

ANALYSIS—SUFFICIENCY OF EVIDENCE

Through several issues, Stephen argues the evidence presented at the final

hearing was not sufficient to support the trial court’s termination of his parental rights

under the predicate grounds. Ashley does not challenge the sufficiency of the evidence

supporting the predicate grounds under which her rights were terminated. 5 Here, the Department alleged, and provided evidence of, several predicate

grounds under which the trial court could have terminated Stephen’s parental rights.

While only one statutory ground is required to terminate parental rights, we must address

Stephen’s complaints that the evidence is legally and factually insufficient to support the

trial court’s findings under subsections (D) and (E). See In re N.G., 577 S.W.3d 230, 232-

33 (Tex. 2019) (per curiam) (finding due process and due course of law require an

appellate court to address grounds (D) and (E) when raised by the parent on appeal and

must also detail its analysis under those grounds).

Here, the trial court found, among other grounds, that the Department established

by clear and convincing evidence that Ashley and Stephen had knowingly placed or

allowed S.S. to remain in conditions or surroundings which endangered the child’s

physical or emotional well-being. TEX. FAM. CODE ANN. § 161.001(b)(1)(D). The trial court

also found by clear and convincing evidence that they engaged in conduct or knowingly

placed S.S. with persons who engaged in conduct which endangered S.S.’s physical or

emotional well-being. Id. at § 161.001(b)(1)(E).

Subsection 161.001(b)(1)(D) permits termination when clear and convincing

evidence shows that 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.” Id. at § 161.001(b)(1)(D). Subsection (D) requires a showing that the

environment in which the child was placed posed a danger to the child’s physical or

emotional health, and it permits termination based on a single act or omission by the

parent. In re 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). Subsection

6 (D) concerns the child’s living environment, rather than the parent’s conduct, though

parental conduct may produce an endangering environment. Jordan v. Dossey, 325

S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). It is not necessary

that a parent’s conduct be directed at the child or that the child be injured, but the parent

must at least be aware of the potential for danger to the child in such an environment and

the fact finder must find that the parent disregarded that risk. In re S.M.L., 171 S.W.3d

472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Illegal drug use and criminal

activity support a conclusion that the child’s surroundings endanger her physical or

emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,

no pet.). The relevant time frame under this subsection is prior to the child’s removal (i.e.,

while the child is living in that environment). In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—

Texarkana 2013, pet. denied).

Subsection (E) 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 which endangers the child's physical or emotional well-being. See

TEX. FAM. CODE ANN. § 161.001(b)(1)(E). The relevant inquiry here is whether evidence

exists that the endangerment of the child’s physical or emotional well-being was the direct

result of the parent’s conduct, including acts, omissions, and failures to act. In re J.T.G.,

121 S.W.3d at 125. Termination under subsection (E) must be based on more than a

single act or omission. Id. That is, a voluntary, deliberate, and conscious course of

conduct by a parent is required. Id. Thus, while both subsections (D) and (E) focus on

endangerment, they differ regarding the source and proof of endangerment. In re S.M.L.,

171 S.W.3d at 477. To support a finding of endangerment under subsection (E), the

parent’s conduct does not necessarily have to be directed at the child nor is the child 7 required to actually suffer injury. Texas Dep’t of Human Services v. Boyd, 727 S.W.2d

531, 533 (Tex. 1987) (reversing appellate court’s holding that father’s imprisonment did

not endanger the emotional and physical well-being of a child).

Here, neither Stephen nor Ashley testified at the final hearing. Instead,

Department employees testified Ashley told them she and Stephen used

methamphetamine together. According to their testimony, Ashley said she had been

smoking methamphetamine for two months and Stephen had been “shooting it with

needles” for over a year. Ashley’s drug test confirmed her use with a positive result for

methamphetamine. S.S.’s test result was negative. Stephen initially failed to submit to a

drug test and the result of his later test was not available at the time of the final hearing.

Ashley also told Department employees of domestic violence incidents between

herself and Stephen. A Department employee testified Ashley admitted to “ongoing

domestic violence in the home, past and present.” Ashley said the reason she was being

treated at a mental health facility was because she tried to cut herself in the neck with

glass from a picture frame after an argument with Stephen. Stephen did not discuss any

of these allegations with the Department and he did not testify at the final hearing.

The record does, however, indicate S.S. was in Stephen’s care while Ashley was

receiving mental heath care and the child appeared “physically plump, healthy” when the

Department investigator conducted an unannounced visit to the home. This, Stephen

argues, shows he did not place S.S. in endangering conditions or engage in endangering

conduct. Given the evidence before the court that Stephen used methamphetamine, a

circumstance we find endangered the well-being of the child, we cannot agree with his

contention. Further, Stephen and S.S. were with Stephen’s father while Ashley was being 8 treated and Stephen’s father used marijuana and was, according to Stephen, an

alcoholic. Given the other evidence before the court, we find the trial court could have

found sufficient evidence to support a finding regarding the predicate grounds set forth

under (D) and (E) despite the observation that S.S. appeared healthy.

Furthermore, domestic violence and drug use are circumstances the trial court can

consider as endangering under subsections (D) and (E). In re K.A.F., No. 05-12-01582-

CV, 2013 Tex. App. LEXIS 7350, at *33-34 (Tex. App.—Dallas June 14, 2013, no pet.)

(mem. op.). See also In re M.V., 343 S.W.3d 543, 547 (Tex. App.—Dallas 2011, no pet.)

(permitting children to remain in abusive environment created by domestic violence

supports termination of parental rights under subsections (D) and (E)). Many courts have

noted that a parent’s ongoing drug use is conduct that subjects a child to a life of

uncertainty and instability, which endangers the physical and emotional well-being of the

child. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). See also In re K.A.S., No. 07-12-

00234-CV, 2012 Tex. App. LEXIS 8725, at *16-17 (Tex. App.—Amarillo Oct. 18, 2012,

no pet.) (mem. op.); In re A.B., 125 S.W.3d 769, 777 (Tex. App.—Texarkana 2003, pet.

denied) (“Drug use and its effect on a parent’s life and ability to parent may establish an

endangering course of conduct.”). “A parent’s continued drug use demonstrates an

inability to provide for the child’s emotional and physical needs and to provide a stable

environment for the child.” In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet.

denied) (citing In re F.A.R., No. 11-04-00014-CV, 2005 Tex. App. LEXIS 234, at *4 (Tex.

App.—Eastland Jan. 13, 2005, no pet.) (mem. op.)). Thus, the trial court, as fact finder,

could have been persuaded that Stephen’s drug use and history of domestic violence

was sufficient to establish the predicate grounds set forth in section 161.001(b)(1)(D) and

(E) of the Family Code. 9 We also note that neither parent completed the services required to secure the

return of S.S. to their care. The record shows that while Stephen and Ashley completed

some of the services required of them, they each failed to complete all of them. Failure

to complete the requirements of a service plan may be considered as part of the

endangering conduct analysis under subsection (E). In re X.S., No. 07-17-00422-CV,

2018 Tex. App. LEXIS 2735, at *9-10 (Tex. App.—Amarillo April 18, 2018, no pet.) (mem.

op.); Robinson v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 686-87

(Tex. App.—Houston [1st Dist.] 2002, no pet.).

Based on this record, we find the evidence was sufficient to permit the trial court

to find by clear and convincing evidence that Stephen knowingly placed or allowed S.S.

to remain in endangering conditions or surroundings and engaged in endangering

conduct.2 TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). Accordingly, we overrule

Stephen’s second, third, fourth, fifth, sixth, seventh, and eighth issues.

ANALYSIS—BEST INTEREST

Both parents challenge the sufficiency of the evidence supporting the trial court’s

finding that termination of their parental rights under the Family Code was in S.S.’s best

interest. In that regard, to support termination of their parental rights, the Department

was required to prove by clear and convincing evidence that termination of Ashley’s and

Stephen’s parental rights was in S.S.’s best interest. Id. at § 161.001(b)(2); In re K.M.L.,

443 S.W.3d at 116. Only if no reasonable fact finder could have formed a firm belief or

conviction that termination of the parents’ parental rights was in the child’s best interest

2Having found sufficient evidence to support the trial court’s termination of parental rights under subsections (D) and (E), we need not address Stephen’s remaining contentions regarding the grounds under which the trial court terminated his rights. In re K.C.B., 280 S.W.3d at 894-95. 10 can we conclude the evidence is insufficient. In re K.M.L., 443 S.W.3d at 116 (citing In

re J.F.C., 96 S.W.3d at 266). The fact finder must make a best interest determination

with respect to each parent independently.

In making a best interest determination, there is a strong presumption that the best

interest of the child will be served by preserving the parent-child relationship. In re R.R.,

209 S.W.3d 112, 116 (Tex. 2006). Prompt and permanent placement of the child in a

safe environment is also presumed to be in the child’s best interest. See TEX. FAM. CODE

ANN. § 263.307(a). Section 263.307(b) provides a non-exhaustive list of factors a fact

finder may consider in deciding the best interest of a child. Similarly, the Supreme Court

has set out other factors a fact finder might consider when determining the best interest

of a child. See Holley, 544 S.W.2d at 371-72. Those factors include (1) the desires of

the child; (2) the emotional and physical needs of the child now and in the future; (3) the

emotional and physical danger to the child now and in the future; (4) the parental abilities

of the individual seeking custody; (5) the programs available to assist the individual to

promote the best interest of the child; (6) the plans for the child by the individual or by the

agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts

or omissions of the parent that may indicate that the existing parent-child relationship is

not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.

Importantly, the absence of evidence about one or more of these considerations does not

preclude a fact finder from reasonably forming a strong conviction or belief that

termination is in the child’s best interest. In re C.H., 89 S.W.3d at 27; In re A.C., 394

S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

11 Evidence that supports one or more statutory grounds for termination may also

constitute evidence illustrating that termination is in the child’s best interest. See In re

C.H., 89 S.W.3d at 28. See also In re E.C.R., 402 S.W.3d 239, 249-50 (Tex. 2013). The

best interest analysis may consider circumstantial evidence, subjective factors, and the

totality of the evidence as well as direct evidence. See In re N.R.T., 338 S.W.3d 667, 677

(Tex. App.—Amarillo 2011, no pet.). Additionally, a child’s need for permanence through

the establishment of a “stable, permanent home” has been recognized as the paramount

consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.

App.—Dallas 2007, no pet.).

As set forth in our discussion of the evidence supporting the predicate grounds on

which the trial court terminated the parents’ rights, evidence showed both parents used

methamphetamine. Also discussed above, Ashley told Department personnel that she

and Stephen had engaged in incidents of ongoing domestic violence.

The record further shows Ashley had a history of mental health issues, sometimes

requiring treatment at a mental health facility. She had, on at least one occasion,

threatened to harm herself. And, the record includes many instances of unusual behavior

for which authorities were contacted. Further, the record shows other incidents of the

unstable nature of Ashley’s life. At the time of the final hearing, Ashley was living on a

“come-and-go” basis with her mother in Florida. The caseworker testified Ashley’s

mother’s home was not an appropriate placement for S.S. due to the mother’s criminal

history and her involvement with CPS in Florida. The caseworker also told the court

Ashley was not employed and had not been employed since prior to S.S.’s removal.

12 Stephen also lived an unstable life. While he had lived in Oklahoma for the majority

of the time in which this case was pending, at the time of the final hearing, he was living

with his father in Dalhart, Texas. While in Oklahoma, Stephen lived with an aunt, then

another relative, and then was homeless.

At the time of the final hearing, S.S. was four years old. When a child is too young

to express her desires, the fact finder may consider whether the child has bonded with

the foster family. Additionally, the fact finder may consider whether the child is well cared

for by her current caregivers, and whether she has spent significant or minimal time with

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

pet.).

Here, S.S. had been living with her maternal aunt and her husband in New York

for thirteen months, was bonded to the family, and doing well. The aunt expressed a

desire to adopt S.S. and was anxious to begin that process. Both Stephen and Ashley

told the caseworker they were happy with S.S.’s placement and desired for her to remain

there. Neither parent appeared at the final hearing and thus, we have no evidence before

us of their plans for the child should she be returned to either one of them. Both parents

lived outside the local area and neither parent maintained significant contact with S.S.

Neither parent called regularly to check on the child and the caseworker agreed that there

were periods in which months would go by with no contact from either parent.

Furthermore, neither parent paid their court-ordered child support or medical support

payments. As previously mentioned, neither Ashley nor Stephen completed all of the

services required of them to secure return of S.S. to their care. In addition, all three

13 Department witnesses recommended that the trial court terminate the parents’ rights on

the basis that termination of those rights was in S.S.’s best interest.

The record contains significant evidence in favor of the trial court’s finding that

termination of Ashley’s and Stephen’s parental rights was in S.S.’s best interest.

Accordingly, we conclude any evidence that the court could have considered supporting

a finding that termination was not in S.S.’s best interest was not so significant as to make

that contrary finding unreasonable. See In re J.F.C., 96 S.W.3d at 266 (standard for

factual insufficiency). Therefore, we find the evidence presented was legally and factually

sufficient to support the trial court’s finding that termination of Stephen’s and Ashley’s

parental rights was in the best interest of the child. Resultantly, we resolve Ashley’s sole

issue against her and we overrule Stephen’s first issue.

CONCLUSION

Having resolved each of the parents’ issues against them, we affirm the order of

the trial court.

Patrick A. Pirtle Justice