in the Interest of T.R., T.R., and R.N.-R., Children

• Court: Court of Appeals of Texas
• Decided: April 15, 2021
• Docket: 02-20-00359-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-20-00359-CV ___________________________

IN THE INTEREST OF T.R., T.R., AND R.N.-R., CHILDREN

On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231-679118-20

Before Kerr, Birdwell, and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION

In this termination case, appellant J.R. (Mother) appeals the trial court’s order

terminating her parental rights to her children T.R. (Trevor), T.R. (Tina), and R.D.N.-

R. (Robert) (collectively the Children).1 In six issues, Mother contends the evidence

was legally and factually insufficient to support termination under Family Code

Section 161.001(b)(1)(D), (E), (O), (P), and (R) and that the evidence was legally and

factually insufficient to support the trial court’s best-interest finding. Because we will

hold that the evidence was legally and factually sufficient to support both the conduct

grounds and the trial court’s best-interest finding, we will affirm the trial court’s

termination order.

I. Background

Drugs are at the heart of this termination. Mother, who was thirty-nine at the

time of trial, testified that she began using marijuana at eighteen and began using

methamphetamines at twenty-one. Her first child, Trevor, was born in October

2012 when Mother was thirty-one. Mother testified that she was not using drugs when

Trevor was born. Mother’s daughter, Tina, was born in December 2017. Mother

testified that she began using heroin shortly after Tina’s birth. She explained that she

began using heroin daily and was a heroin user from 2018 until 2020.

1 We use aliases to refer to the Children and the parties. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).

2 The Department of Family and Protective Services became involved with

Mother in April 2019, when it received allegations that she had purchased

methamphetamines and “would stay up for several days at a time due to her being

under the influence.” Morgan Overn, an investigator with the Department, testified

that she met with Mother after receiving the allegation, and Mother told her she had

used illegal drugs “several years prior” but that she had not used illegal drugs in

“about 10 years.” Overn requested that Mother complete an oral swab drug test, but

Mother refused. Mother told Overn that she would go to a drug-testing site the

following day, but Mother did not have the testing done. After the Department

became involved, Mother placed Trevor in the care of one of Mother’s relatives and

placed Tina in the care of Tina’s paternal grandmother. In May 2019, Trevor and Tina

were taken to Cook Children’s Medical Center to be drug tested. Trevor did not have

enough hair to be tested, but Tina was tested, and her results were positive for

methamphetamines and heroin. Overn later referred Mother to Recovery Resource

Council, and Mother engaged its services in June 2019. Mother admitted to Recovery

Resource Council that she had used marijuana, methamphetamines, and heroin in the

thirty days prior to June 2019, at a time when she was pregnant with Robert.

The Department filed its petition to terminate Mother’s parental rights as to

Trevor and Tina in August 2019. In the petition, the Department sought termination

of Mother’s parental rights based on the predicate termination grounds set forth in

Subsections (D), (E), (F), (K), (M), (N), (O), (P), (Q), and (R) of Section 161.001(b)(1)

3 of the Family Code.2 See Tex. Fam. Code Ann. § 161.001(b)(1) (D), (E), (F), (K), (M),

(N), (O), (P), (Q), (R). Around that time, Jamesha Richard, a conservatorship

specialist for the Department, was assigned to Mother’s case. Richard met with

Mother at a hearing on August 30, 2019, and Mother admitted to Richard that she had

relapsed “right before the . . . hearing.”

Richard developed a service plan for Mother. Among other things, Mother was

asked to complete parenting classes, to attend individual counseling, to submit to a

psychological evaluation, to submit to a drug abuse assessment, to comply with

requests for random drug testing, and to refrain from engaging in criminal activity.

Mother complied with some aspects of the service plan. She completed parenting

classes, attended counseling sessions,3 submitted to a psychological evaluation, and

submitted to a drug abuse assessment.

As to the random drug testing and the requirement that she refrain from

criminal activity, Mother’s drug-test results came back negative in the early months of

the case: she had negative test results in September 2019, October 2019, and

November 2019. In December 2019, however, Mother tested positive for

methamphetamines and heroin. That same month, Robert was born. Robert tested

2 The petition was later amended in December 2019, following Robert’s birth, and the Department sought termination of Mother’s rights as to all the Children alleging the same termination grounds as in the original petition.

While Mother attended several substance abuse counseling sessions, she was 3

not discharged from counseling due to her continued use of illegal drugs.

4 positive for opiates at his birth, and after spending a month in the NICU, he was

placed with a foster family. In February 2020, Mother tested positive for heroin. In

May 2020, Mother tested positive for methamphetamines. In July 2020, Mother tested

positive for heroin. In August 2020, Mother tested positive for methamphetamines.

Richard testified that Mother was dishonest about her drug use. Richard stated that

when Mother was confronted with the positive test results, Mother would typically

deny that she had used drugs. At trial, however, Mother stated that she did not

dispute the results of any of the drug tests. In explaining her relapses, Mother testified

that she had been prescribed a legal dose of methadone during the summer of

2019 after becoming pregnant with Robert, and that she began using heroin in

2020 after she attempted to stop taking methadone on her own.

In October 2020, Mother was admitted to Nexus Recovery. She was still

residing at Nexus at the time of trial in November 2020 but stated that she would be

discharged at the end of the week. Mother testified at trial that she had been “clean

for over a month.” She stated that following her discharge from Nexus, she was going

to attend a sober-living program at the Oxford House, an addiction recovery center.

She stated that at the Oxford House she would receive counseling and recovery

support services and that she would go to Alcoholics Anonymous and Narcotics

Anonymous meetings. She also stated that she would have a recovery coach that

could assist her with finding a job. Mother admitted, however, that it would take

5 “months” before she was fully recovered and “a couple months” to get a home, find a

job, and be prepared to take care of the Children.

Following trial, the trial court issued a ruling terminating Mother’s parental

rights to the Children under Subsections (D), (E), (O), (P), and (R) and finding that

such termination was in the Children’s best interest. Mother appeals from that

II. Conduct Grounds

In her first and second issues, Mother argues that the evidence was legally and

factually insufficient to support termination under Family Code Section

161.001(b)(1)(D) and (E).

A. STANDARD OF REVIEW

For a trial court to terminate a parent–child relationship, the party seeking

termination must prove two elements by clear and convincing evidence: 1) that the

parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1); and

2) that termination is in the child’s best interest. Id. § 161.001(b); In re E.N.C.,

384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). 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.” Tex. Fam. Code

Ann. § 101.007; E.N.C., 384 S.W.3d at 802.

6 To determine whether the evidence is legally sufficient in parental-termination

cases, we look at all the evidence in the light most favorable to the challenged

findings—here the endangerment findings—to determine whether a reasonable

factfinder could form a firm belief or conviction that the finding is true. In re J.P.B.,

180 S.W.3d 570, 573 (Tex. 2005); see Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).

We assume that the factfinder settled any evidentiary conflicts in favor of its finding if

a reasonable factfinder could have done so. J.P.B., 180 S.W.3d at 573. We disregard all

evidence that a reasonable factfinder could have disbelieved, and we consider

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

evidence favorable to the finding if a reasonable factfinder could, and we disregard

contrary evidence unless a reasonable factfinder could not. See id. The factfinder is the

sole judge of the witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d 336,

346 (Tex. 2009).

We must perform “an exacting review of the entire record” in determining the

factual sufficiency of the evidence supporting the termination of a parent–child

relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due

deference to the factfinder’s findings and do not supplant them with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we review the whole record to decide

whether a factfinder could reasonably form a firm conviction or belief that the

Department proved the endangerment grounds. See Tex. Fam. Code Ann.

7 § 161.001(b)(1)(D), (E); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder

reasonably could form such a firm conviction or belief, then the evidence is factually

sufficient. C.H., 89 S.W.3d at 18–19.

B. LAW ON ENDANGERMENT

Subsections (D) and (E) of Texas Family Code Section 161.001(b)(1) provide

that the trial court may order the termination of a parent’s rights if it finds by clear

and convincing evidence that a parent has

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; [or]

(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child[.]

Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).

“Endanger” means to expose to loss or injury, to jeopardize. Tex. Dep’t of

Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.T.G., 121 S.W.3d 117,

125 (Tex. App.—Fort Worth 2003, no pet.). Under Subsection 161.001(b)(1)(D), it is

necessary to examine the evidence related to the environment of the child to

determine if the environment was the source of the endangerment to the child’s

physical or emotional well-being. J.T.G., 121 S.W.3d at 125. Conduct of a parent in

the home can create an environment that endangers the physical and emotional well-

being of a child. Id. As an example, a parent’s illegal drug use and drug-related

8 criminal activity supports the conclusion that a child’s surroundings endanger the

child’s physical or emotional well-being. Id.

Under Subsection 161.001(b)(1)(E), the relevant inquiry is whether evidence

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

the parent’s conduct, including acts, omissions, or failures to act. See id.; see also Tex.

Fam. Code Ann. § 161.001(b)(1)(E). Termination under Subsection (E) must be based

on more than a single act or omission; a voluntary, deliberate, and conscious course of

conduct by the parent is required. J.T.G., 121 S.W.3d at 125. It is not necessary,

however, that the parent’s conduct be directed at the child or that the child actually

suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger

to a child’s well-being may be inferred from parental misconduct standing alone. In re

R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). “As a general

rule, conduct that subjects a child to a life of uncertainty and instability endangers the

physical and emotional well-being of a child.” Id. Additionally, “[a] mother’s use of

drugs during pregnancy may amount to conduct that endangers the physical and

emotional well-being of the child,” and “[d]rug addiction and its effect on a parent’s

life and ability to parent may establish an endangering course of conduct as well.”

J.T.G., 121 S.W.3d at 125–26.

C. ENDANGERMENT ANALYSIS

Because the evidence pertaining to Subsections (D) and (E) is interrelated, we

conduct a consolidated review. In re S.H., No. 02-17-00188-CV, 2017 WL 4542859, at

9 *10 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem. op.); In re T.N.S.,

230 S.W.3d 434, 439 (Tex. App.—San Antonio 2007, no pet.).

Here, the record contains evidence that Mother had used illegal drugs for much

of her adult life and that she displayed little ability to stop her addiction. Mother

began using marijuana at eighteen and methamphetamines at twenty-one. Although

she testified that she was not using drugs when Trevor was born, Mother admitted

that she began using heroin shortly after Tina’s birth. Mother testified that she used

heroin daily and that she used the drug from 2018 until 2020. The record further

reflects that the Department became involved in this case due to allegations of

Mother’s drug use—it was alleged that Mother “would stay up for several days at a

time due to her being under the influence.” In May 2019, Tina tested positive for

methamphetamines and heroin. Records from Recovery Resource Council show that

Mother admitted to using marijuana, methamphetamines, and heroin while she was

pregnant with Robert.

Mother’s illegal drug use continued even after the Department filed its petition

to terminate her parental rights. Mother tested positive for methamphetamines and

heroin in December 2019. That same month, Robert tested positive for opiates at his

birth. Mother tested positive for heroin in February 2020, tested positive for

methamphetamines in May 2020, tested positive for heroin in July 2020, and tested

positive for methamphetamines in August 2020. Richard testified that Mother was

10 dishonest about her drug use. At trial, Mother did not dispute the results of her drug

tests.

Viewing all the evidence in the light most favorable to the trial court’s

judgment and recognizing that the factfinder is the sole arbiter of the witnesses’

credibility and demeanor, we hold that there is some evidence of an endangering

environment on which a reasonable factfinder could have formed a firm belief or

conviction that Mother had knowingly placed or had knowingly allowed the Children

to remain in conditions or surroundings that had endangered their emotional or

physical well-being and that there is some evidence of endangering conduct on which

a reasonable factfinder could have formed a firm belief or conviction that Mother had

engaged in conduct that had endangered the Children’s physical or emotional well-

being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); J.T.G., 121 S.W.3d at 125–26.

Giving due deference to the factfinder’s endangering-environment and

endangering-conduct findings, without supplanting the factfinder’s judgment with our

own, and after reviewing the entire record, we hold that a factfinder could reasonably

form a firm conviction or belief that Mother had knowingly placed or had knowingly

allowed the Children to remain in conditions or surroundings that had endangered

their emotional or physical well-being and that Mother had engaged in conduct that

had endangered the Children’s physical or emotional well-being. See Tex. Fam. Code

Ann. § 161.001(b)(1)(D), (E); J.T.G., 121 S.W.3d at 125–26.

11 We overrule Mother’s first and second issues. Because we hold that the

evidence is legally and factually sufficient to support the endangerment findings, and

because only one finding is necessary to sustain a parental-rights termination, we need

not address Mother’s challenges to the trial court’s other findings of grounds for

termination. See Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; J.L.,

163 S.W.3d at 84; see also Tex. R. App. P. 47.1. We therefore overrule Mother’s third,

fourth, and fifth issues.

III. Best Interest

In her sixth issue, Mother argues that the evidence was legally and factually

insufficient to support the trial court’s best-interest finding.

A. STANDARD OF REVIEW AND BEST-INTEREST FACTORS

We review Mother’s challenge to the sufficiency of the trial court’s best-interest

finding under the review standards stated regarding the conduct grounds. In

determining whether to support a best-interest finding, we review the entire record. In

re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Although we generally presume 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), the best-interest analysis is child-centered, focusing on the child’s

well-being, safety, and development, In re A.C., 560 S.W.3d 624, 631 (Tex. 2018).

Evidence probative of a child’s best interest may be the same evidence that is

probative of a Subsection (b)(1) ground. E.C.R., 402 S.W.3d at 249; C.H., 89 S.W.3d

at 28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the evidence in

12 light of nonexclusive factors that the factfinder may apply in determining the child’s

best interest:

(A) the child’s desires;

(B) the child’s emotional and physical needs, 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 child’s best interest;

(F) the plans for the child by these individuals;

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

(H) the parent’s acts or omissions indicating that the existing parent- child relationship is not a proper one; and

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

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at

249 (stating that in reviewing a best-interest finding, “we consider, among other

evidence, the Holley factors” (footnote omitted)); E.N.C., 384 S.W.3d at 807. These

factors are not exhaustive, and some listed factors may not apply to some cases. C.H.,

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

sufficient to support a finding that termination is in the child’s best interest. Id. On

the other hand, the presence of scant evidence relevant to each factor will not support

such a finding. Id.

13 B. BEST-INTEREST ANALYSIS

With regard to the Children’s emotional and physical needs now and in the

future and the emotional and physical danger to them now and in the future, the

record reflects that Mother abused illegal drugs to the detriment of the Children.

Mother became a daily heroin user shortly after Tina’s birth, and shortly after the

Department became involved, Tina tested positive for methamphetamines and heroin.

The record further reflects that Mother used illegal drugs while pregnant with

Robert—records from Recovery Resource Council indicate that Mother used

marijuana, methamphetamines, and heroin in the thirty days prior to June 2019, and

Richard testified that Mother told her that she had relapsed “right before” an August

30, 2019 hearing. Robert ultimately tested positive for opiates at his December

2019 birth. Mother continued using illegal drugs following Robert’s birth, testing

positive for methamphetamines and/or heroin in February, May, July, and August

2020. While Mother stated that she had been “clean for over a month” at trial, Mother

had previously had periods where she had not taken illegal drugs before relapsing. The

trial court was entitled to find that this factor weighed in favor of terminating

Mother’s parental rights to the Children.

With regard to the plan for the Children by the individuals seeking custody and

the stability of the home or proposed placement, the record reflects that Richard

recommended that the Children be adopted and that it was in their best interest to be

adopted. The record also reflects that Robert was placed with a foster family shortly

14 after his birth and that he had bonded with the family, was thriving, and that the

family wished to adopt him. The record further reflects that that same foster family

was interested in adopting Tina.4 The record also reflects that Trevor’s current

caregiver—Mother’s relative that had taken care of him since shortly after the

Department’s involvement in the case—desired to adopt him. The Department was

also considering whether Trevor could be placed with a former boyfriend of Mother’s

who had been a father figure in Trevor’s life. Mother testified that the Children

appeared to be well taken care of by their respective placements. As to Mother’s

plans, the record reflects that Mother had not established employment at the time of

trial and had not established any kind of home or housing, although Mother believed

that a recovery coach at the Oxford House could assist her with finding a job. Mother

admitted, however, that it would take “months” before she was fully recovered from

her drug addiction and that it would take “a couple months” to get a home, find a job,

and be prepared to take care of the Children. The trial court was entitled to find that

this factor weighed in favor of terminating Mother’s parental rights to the Children.

With regard to Mother’s acts or omissions indicating that the existing parent–

child relationship is not a proper one and any excuse for Mother’s acts or omissions,

the record reflects, as detailed above, that Mother abused illegal drugs to the

4 Tina’s paternal grandmother, who had been taking care of Tina since the Department’s involvement in the case, was evidently in hospice care at the time of trial.

15 detriment of the Children. Tina tested positive for methamphetamines and heroin,

Mother used marijuana, methamphetamines, and heroin while pregnant with Robert,

and Robert ultimately tested positive for opiates at his birth. Mother continued using

illegal drugs following Robert’s birth, testing positive for methamphetamines and/or

heroin in February, May, July, and August 2020. At trial, Mother stated that she began

using drugs on a regular basis because she was “molested as a child [and] grew up with

alcoholic parents,” although Mother admitted that she was responsible for Robert

being positive at birth for opiates and that she was responsible for Tina testing

positive for methamphetamines and heroin. The trial court was entitled to find that

this factor weighed in favor of terminating Mother’s parental rights to the Children.

C. BEST-INTEREST CONCLUSION

Viewing the evidence in the light most favorable to the trial court’s best-

interest finding, we hold that a reasonable factfinder could have reasonably formed a

firm conviction or belief that termination of the parent-child relationship between

Mother and the Children was in the Children’s best interest, and we therefore hold

that the evidence is legally sufficient to support the trial court’s best-interest finding.

See Tex. Fam. Code Ann. § 161.001(b)(2); J.P.B., 180 S.W.3d at 573. Based on our

exacting review of the entire record and giving due deference to the factfinder’s

findings, we likewise conclude that the evidence is factually sufficient to support the

trial court’s best-interest finding. See C.H., 89 S.W.3d at 18–19. Accordingly, we

overrule Mother’s sixth issue.

16 IV. Conclusion

Having overruled Mother’s six issues, we affirm the trial court’s termination

order.

/s/ Mike Wallach Mike Wallach Justice

Delivered: April 15, 2021