in the Interest of T.B., T.B., I.B. and M.D., Jr., Children

• Court: Court of Appeals of Texas
• Decided: October 17, 2018
• Docket: 10-18-00247-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00247-CV

IN THE INTEREST OF T.B., T.B., I.B. AND M.D., JR., CHILDREN

From the 74th District Court McLennan County, Texas Trial Court No. 2016-3831-3

MEMORANDUM OPINION

Shavon B. appeals from a judgment that terminated her parental rights to her

children, T.B., T.B., I.B., and M.D., Jr. Shavon complains that the evidence was legally

and factually insufficient for the trial court to have found that she committed any of the

three predicate acts upon which the termination was granted or that termination was in

the best interest of the children. TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (E), (O), and

(b)(2) (West 2014). Because we find no reversible error, we affirm the judgment of the

trial court. STANDARD OF REVIEW—LEGAL AND FACTUAL SUFFICIENCY

The standards of review for legal and factual sufficiency in termination cases are

well-established. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (legal sufficiency); In re

C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In reviewing the legal sufficiency

of the evidence, we view all the evidence in the light most favorable to the finding to

determine whether a trier of fact could reasonably have formed a firm belief or conviction

about the truth of the Department's allegations. In re J.L., 163 S.W.3d 79, 84-85 (Tex. 2005);

J.F.C., 96 S.W.3d at 265-66. We do not, however, disregard undisputed evidence that does

not support the finding. J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of

the evidence, we must give due consideration to evidence that the factfinder could

reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. 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,

the evidence is factually insufficient. Id.

In assessing the sufficiency of the evidence under the foregoing standards, we

cannot weigh witness-credibility issues that depend on the appearance and demeanor of

the witnesses, for that is the factfinder's exclusive province. In re J.P.B., 180 S.W.3d at 573-

74. Instead, we defer to the factfinder's credibility determinations as long as they are not

unreasonable. Id.

In the Interest of T.B., T.B., I.B. and M.D., Jr., Children Page 2 SECTION 161.001(b)(1)(D) AND (E)

In her first issue, Shavon contends that the evidence is legally and factually

insufficient to support the termination of her parental rights pursuant to Section

161.001(b)(1)(D) or (E) of the Family Code. Section 161.001(b)(1)(D) authorizes the

termination of parental rights when a parent "knowingly placed or knowingly allowed a

child to remain in conditions or surroundings that endangered the child's physical or

emotional well-being." TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Subsection (E) of section

161.001(1)(b) permits termination when a 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(b)(1)(E).

A child is endangered when the environment creates a potential for danger that

the parent is aware of but disregards. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—

Houston [14th Dist.] 2005, no pet.). In reviewing the sufficiency of the evidence pursuant

to Section 161.001(b)(1)(D), "we must examine the time before the [child]'s removal to

determine whether the environment [of the home] posed a danger to the child's physical

or emotional well-being." In re L.C., 145 S.W.3d 790, 795 (Tex. App.—Texarkana 2004, no

pet.). Subsection (D) permits termination of parental rights based on a single act or

omission by the parent. In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet.

denied). Additionally, "illegal drug use by a parent likewise supports the conclusion that

the children's surroundings endanger their physical or emotional well-being." In re L.E.S.,

In the Interest of T.B., T.B., I.B. and M.D., Jr., Children Page 3 471 S.W.3d 915, 925 (Tex. App.—Texarkana 2005, no pet.) (citing In re J.T.G., 121 S.W.3d

117, 125 (Tex. App.—Fort Worth 2003, no pet.)).

Additionally, "a parent's use of narcotics and its effect on his or her ability to parent

may qualify as an endangering course of conduct" pursuant to Subsection (E). In re J.O.A.,

283 S.W.3d 336, 345 (Tex. 2009); see also In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco

2008, no pet.) ("Evidence of illegal drug use or alcohol abuse by a parent is often cited as

conduct which will support an affirmative finding that the parent has engaged in a course

of conduct which has the effect of endangering the child."). Illegal drug use may support

termination under Subsection 161.001(b)(1)(E) because "it exposes the child to the

possibility that the parent may be impaired or imprisoned." Walker v. Tex. Dep't of Family

& Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

Even a parent's decision to engage in illegal drug use during the pendency of a

termination suit, when the parent is at risk of losing a child, may support a finding that

the parent engaged in conduct that endangered the child's physical or emotional well-

being. See In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied).

The children were removed from Shavon after a report that Shavon was selling

and using cocaine and marijuana around the children. Shavon tested positive for cocaine

and marijuana immediately prior to the removal of the children and was arrested for

child endangerment because two of the children were with her. Shavon pled guilty to

the endangerment charge and was placed on deferred adjudication community

In the Interest of T.B., T.B., I.B. and M.D., Jr., Children Page 4 supervision. There was testimony that one of the children was able to describe how her

mother rolled marijuana into a brown paper, which she would then sell to people for

money. The evidence was legally and factually sufficient for the trial court to have found

that Shavon knowingly allowed her children to remain in surroundings that endangered

their physical or emotional well-being pursuant to Subsection (D). The evidence was also

legally and factually sufficient for the trial court to have found that she engaged in

conduct that endangered the physical or emotional well-being of the children pursuant

to Subsection (E). We overrule issue one. Although we have found the evidence

sufficient as to two predicate grounds, because the evidence as to only one predicate

ground must be sufficient to support the judgment, we do not need to address issue two

regarding Shavon's failure to complete her service plan. See In re A.V., 113 S.W.3d 355,

362 (Tex. 2003).

BEST INTEREST

In her third issue, Shavon complains that the evidence was legally and factually

insufficient for the trial court to have found that termination of the parent-child

relationship was in the best interest of the children. There is a strong presumption that

keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116

(Tex. 2006). Nonexclusive factors that the trier of fact in a termination case may also use

in determining the best interest of the children include the following: (A) the desires of

the children; (B) the emotional and physical needs of the children now and in the future;

In the Interest of T.B., T.B., I.B. and M.D., Jr., Children Page 5 (C) the emotional and physical danger to the children 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 children; (F) the plans for the children

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 v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors

are not exhaustive, and some listed factors may be inapplicable to some cases. C.H., 89

S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient in a

particular case to support a finding that termination is in the best interest of the children.

Id. On the other hand, the presence of scant evidence relevant to each factor will not

support such a finding. Id.

At the time of the final hearing, the children were 13, 10, 6, and 3 years old. The

youngest child was in a foster home where the parents were hoping to adopt him and

was doing very well in that placement. The two oldest boys were placed together in a

foster home where adoption could be a possibility; however, the children had stated that

they did not wish to be adopted. The 6-year-old had just been placed in a foster home

that was not an adoptive placement. The older children wanted to be returned to their

mother. There were behavioral issues with the older children which made placements

more difficult. The Department believed that if Shavon's parental rights were terminated,

In the Interest of T.B., T.B., I.B. and M.D., Jr., Children Page 6 other adoptive placements might be available and the Department would continue to

seek adoption or relative placement after the termination.

Shavon provided names of several relatives for potential placements, however,

none of them had worked out as a location for the Department to place the children. At

least one of the placements fell through because of Shavon's interference. Shavon had

also interfered with the first foster placement of the children when she had phone contact

with them. According to the first foster parent, Shavon would tell the children that they

did not have to behave or follow rules in the placement which would result in the

children's misbehavior and ultimately, the children had to be relocated.

Shavon did not participate in services with the Department for a significant

portion of the case, which was extended by six months to attempt to investigate an out-

of-state relative placement. Shavon did complete a portion of her service plan, but did

not seek a psychiatric evaluation even though it had been recommended in her

psychological evaluation, which diagnosed her with depression, anxiety, and potentially

bipolar disorder.

Shavon also tested positive for cocaine in hair tests multiple times throughout the

case, although she contended that the tests were erroneous. Shavon provided one hair

test that she had completed at her own expense which was negative from a different

testing facility. Shavon admitted to using cocaine when the children were removed but

denied that she had used it for more than a month or two around the time of the removal.

In the Interest of T.B., T.B., I.B. and M.D., Jr., Children Page 7 Shavon denied having a drug problem of any kind or that any drug use on her part

affected the children. Initially, Shavon denied that she had sold drugs but admitted to

selling drugs prior to the children's removal after the State confronted her about her

having told her therapist that she had sold drugs. When asked what drugs she was

selling, Shavon invoked her Fifth Amendment right to remain silent and refused to

answer the question. Shavon had also been in a relationship with a man who was

arrested for assaulting her during the proceedings.

Shavon had a job through a temporary agency and had recently moved into a three

bedroom residence where she intended for the children to reside with her. Shavon

claimed to have a strong support system that would help with the children but did not

want to attempt to have the children placed with any of them. Shavon was very bonded

with the children and visits demonstrated this; however, Shavon would tell the children

that they would be coming home with her soon or other information about the case which

would result in the children acting out at times throughout the proceedings.

The trial court ordered Shavon to submit to a nail test for drugs shortly before the

final hearing. Shavon did not go to the testing location for two days and at that time, it

was discovered that her toenails had been completely cut off, which made it impossible

to perform the testing. Shavon appeared one other time at the testing facility; however,

her nails were still too short for testing. Shavon's fingernails were also too short for

testing.

In the Interest of T.B., T.B., I.B. and M.D., Jr., Children Page 8 A parent's history of drug abuse, plus continuing narcotics use while this case was

pending, not only supports the trial court's endangerment finding, it also supports the

best-interest determination. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth

2007, no pet.) (explaining that parent's history of drug use is relevant to trial court's best-

interest finding). A parent's drug use is a condition indicative of instability in the home

environment because it exposes a child to the possibility that the parent may be impaired

or imprisoned. See In re A.M., 495 S.W.3d 573, 579 (Tex. App.—Houston [1st Dist.] 2016,

pet. denied); P.W. v. Dep't of Family & Protective Servs., 403 S.W.3d 471, 479 (Tex. App.—

Houston [1st Dist.] 2013, pet. dism'd w.o.j.). Evidence of a parent's past pattern of drug

use is relevant not only to the stability of the home she can provide but also to the

emotional and physical needs of the children now and in the future and to the emotional

and physical danger in which the children could be placed now and in the future. See

Holley, 544 S.W.2d at 371-72 (factors two, three, and seven); see also In re A.C., 394 S.W.3d

633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (finding pattern of illegal drug use

suggested mother was not willing and able to provide child with safe environment—a

primary consideration in determining child's best interest).

Further, the trial court could have inferred that Shavon's drug abuse would likely

continue in the future based on the positive drug tests during the pendency of the

proceedings. When determining best interest, a trial court may measure a parent's future

In the Interest of T.B., T.B., I.B. and M.D., Jr., Children Page 9 conduct by his past conduct. In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011,

no pet.).

Although the older children were not in a permanent placement, the Texas

Supreme Court has stated that "[e]vidence about placement plans and adoption are, of

course, relevant to best interest," however, "the lack of evidence about definitive plans for

permanent placement and adoption cannot be the dispositive factor; otherwise,

determinations regarding best interest would regularly be subject to reversal on the sole

ground that an adoptive family has yet to be located." In re C.H., 89 S.W.3d at 28. "Instead,

the inquiry is whether, on the entire record, a factfinder could reasonably form a firm

conviction or belief that termination of the parent's rights would be in the child's best

interest—even if the agency is unable to identify with precision the child's future home

environment." Id. In fact, the evidence showed that it was Shavon's disruptiveness to

foster placements and potential relative placements that had in some part hindered the

Department's attempts at permanency.

Although the children were bonded to their mother and did not want for their

mother's rights to be terminated, even though we factor in their desires as we must, those

desires are not allowed to overrule their physical safety and emotional health. See In re

M.Y.G., 423 S.W.3d 504, 514 (Tex. App.—Amarillo 2014, no pet.). Our analysis of this

issue has taken the desires of the older children into account; however, such a request

militates only slightly against the trial court's best interest finding in this case.

In the Interest of T.B., T.B., I.B. and M.D., Jr., Children Page 10 We find that after viewing all of the evidence in the light most favorable to the

finding regarding the best interest of the children, the evidence was sufficiently clear and

convincing that a reasonable factfinder could have formed a firm belief or conviction that

termination of the parent-child relationship between Shavon and the children was in the

children's best interest. We further conclude that, viewed in light of the entire record,

any disputed evidence could have been reconciled in favor of the trial court's finding that

termination of the parent-child relationship between Shavon and the children was in the

children's best interest or was not so significant that the trial court could not reasonably

have formed a firm belief or conviction that termination was in the children's best interest.

Therefore, after considering the relevant factors under the appropriate standards of

review, we hold the evidence is legally and factually sufficient to support the trial court's

finding that termination of the parent-child relationship was in the best interest of the

children. We overrule issue three.

CONCLUSION

Having found no reversible error, we affirm the judgment of the trial court.

TOM GRAY Chief Justice

In the Interest of T.B., T.B., I.B. and M.D., Jr., Children Page 11 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed October 17, 2018 [CV06]

In the Interest of T.B., T.B., I.B. and M.D., Jr., Children Page 12