in the Interest of T.R.S.

• Court: Court of Appeals of Texas
• Decided: June 13, 2019
• Docket: 09-18-00482-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-18-00482-CV __________________

IN THE INTEREST OF T.R.S. __________________________________________________________________

On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. CV1712251 __________________________________________________________________

MEMORANDUM OPINION

In this parental-rights termination case, Father1 seeks to overturn the final

judgment terminating his parental rights to his daughter based on his claim that the

evidence does not support the trial court’s finding that terminating his relationship

with his daughter is in her best interest. 2 For the reasons explained below, we

1 To protect T.R.S.’s identity, we use a pseudonym for her name, her father’s name, and the name of her foster mother. See Tex. R. App. P. 9.8(a), (b). 2 See Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2018). 1 conclude that legally and factually sufficient evidence is in the record to support the

trial court’s best-interest finding.

Background

The record shows the Department of Family and Protective Services sued

Father in July 2017 seeking to terminate his parental rights to Tricia based on reports

alleging that Father “ha[d] been addicted to drugs for years,” had been seen under

the influence of drugs while around Tricia, and that Tricia’s home was infested with

lice and mold. The Department also alleged that Father had not allowed the

Department’s caseworker to have access to Tricia’s home or to interview her.

The Department tried the case in a bench proceeding in December 2018. The

trial lasted two days. Tricia was six years old when the trial occurred. On the first

day of the trial, the Department called the Department’s caseworker, Tricia’s foster

mother, and the individual the trial court appointed to serve as Tricia’s court-

appointed special advocate (CASA). That same day, the court and the attorneys

representing the parties interviewed Tricia in the court’s chambers. Father also

testified on the first day of the trial. On the second day of the trial, Father called a

woman, “Mary.” 3 Mary testified that she knew Father when he was younger and that

she and Father had reconnected just months before the trial.

3 A pseudonym. 2 Generally, the testimony in the trial shows that before the Department sued,

Father had worked as a tattoo artist for over two decades. He was still working in

that occupation at the time of the trial. The evidence revealed that Father and Tricia

both love each other, and Father stated a desire to raise her. During the testimony,

Father claimed that doctors had diagnosed Tricia with autism before he and Tricia

moved to Texas. Father also testified that every time he sees Tricia, she asks him

“when she’s going to get out of” the home where she now lives.

For the most part, the trial focused on Father’s drug use. Father testified that

he is not addicted to any drugs, admitted he used a prescription stimulant in the past,

and stated he was not currently taking the stimulant but agreed that he still needs it.

Father explained that before he and Tricia moved to Texas, he smoked marijuana.

He denied using methamphetamines since leaving college “a long time ago.” During

the trial, Father agreed the drug testing he completed showed he had used marijuana

and amphetamines, but he claimed the tests do not show that he was using meth.4

Still, Father testified that the lab that did his tests should have categorized the results

assigned to his tests as false positives and not classified them as positive results.

4 The only evidence admitted in the trial about Father’s drug testing came from witnesses who testified about the results. Neither the Department, nor Father, ever asked the trial court to admit any of the records that contained the results of Father’s drug tests. 3 According to Father, his tests results were positive because he had taken a

medication to prevent heartburn. Father claimed that any drug tests he missed

resulted from missing the telephone calls informing him of the dates the lab

scheduled the tests.

Father addressed questions about his work, job opportunities, the support he

provided to Tricia, and where he lived after the Department removed Tricia from his

care. Father explained that he lived with his mother for a while, but she kicked him

out, which left him no place to live. Father stated that he currently lives with the

owner and owner’s family of the tattoo shop where he works. He explained that he

often stays in the shop all night depending on his schedule. While Father denied his

current roommate has a criminal history or history with the Department, he stated

that he never asked his roommate to speak with the Department’s investigator

because he never intended to have Tricia live where he currently resides.

Father addressed his future plans for Tricia when he testified. According to

Father, he has a better job opportunity to work and earn more as the manager of a

tattoo parlor in Florida. Father explained that if the court allowed him to maintain

his possessory rights, he would stay in Texas but that his ultimate goal is to move to

Florida and manage a tattoo parlor there. Father agreed that if the court placed Tricia

with Mary, he could not help support Tricia because he has “no support here.” Father

4 reiterated: “My plan was not to be here, my plan was to be in Florida and I had it all

set up.” Father’s testimony allowed the trial court to conclude he has provided little

support to Tricia. He has supplied her with some things when she asks, like clothes

and toys.

The testimony of the Department’s caseworker shows that Father violated the

Department’s service plan and failed to complete several substance abuse programs.

The caseworker stated that Tricia came into the Department’s care in July 2017, after

the Department received a report that Father was seen under the influence of drugs

while Tricia was present. According to the caseworker, Father took drug tests in July

2017 and July 2018. The caseworker stated the tests were positive for

methamphetamine. The caseworker explained that while handling the case, she

learned that another child protective agency in another state had investigated Father

based on his reported use of drugs. The caseworker testified that after the

Department sued, Father missed over twenty of the tests he was supposed to take to

determine whether he was taking drugs. According to the caseworker, Father told

her he missed the tests because he did not want “to do drug tests for [the Department]

anymore.” She also stated she believes Father still uses illegal drugs.

The testimony in the trial addressed Father’s employment and living

arrangements. The caseworker testified that Father told the Department that he

5 worked at a tattoo parlor, but he had no paperwork to document what he made there.

During the trial, the caseworker expressed her concerns about Father’s living

arrangements. She stated that if the trial court required the Department to return

Tricia to Father, “[she] wouldn’t know where [Tricia] would be living.” The

caseworker acknowledged that Father never missed any visits with Tricia while

Tricia was in the Department’s care. The caseworker stated that she thought Father’s

parental rights should be terminated due to his failure to complete a drug

rehabilitation program required by his family service plan. She also explained that,

in her opinion, Father knowingly placed or allowed Tricia to remain in conditions or

surroundings that endangered Tricia’s physical or emotional well-being. According

to the caseworker, Tricia’s best interest would be served by terminating Father’s

rights because he could not provide Tricia a safe and stable home.

Tricia’s CASA testified that currently, Tricia is living in a home where she is

happy, playful, and active in Girl Scouts. She explained that Tricia has excellent

grades in school. According to the CASA, Tricia expressed a desire to be with Father

and to remain in the school where she has many friends. The CASA stated that Tricia

recently said “she has wished to move to Florida and go to Disney World and go to

the beach like her dad promised her.” The CASA agreed that since the Department

6 removed Tricia, Father had seen Tricia regularly, Tricia desired to see him, and he

had given Tricia toys and clothes.

That said, the CASA expressed concern about whether Father had the skills

needed to care for Tricia. According to the CASA, Father tested positive on the drug

tests that he took in the summer of 2018. She stated that Father’s current roommate

refused to cooperate with the Department’s efforts to check his background to allow

the Department to evaluate whether “it would be possible for reunification there.”

The CASA explained she had not been able to determine whether Father’s current

living arrangement offers Tricia a stable and drug-free environment. The CASA

stated she understood that Tricia’s foster mother wants to adopt Tricia, and that the

foster mother is agreeable to allowing Tricia to communicate with her Father.

According to the CASA, it would not be in Tricia’s best interest for the court to place

Tricia in Mary’s home. Finally, the CASA testified that, in her opinion, it was in

Tricia’s best interest for her Father’s rights to be terminated.

Tricia’s foster mother, “Terry,” testified in the trial about Tricia’s current

placement. According to Terry, Tricia has lived with her for almost sixteen months.

Terry stated that Tricia calls her mom, and she described Tricia as a normal six-year-

old child. Terry explained that she wants to adopt Tricia, that Tricia does well in

school, that Tricia likes to model, and that Tricia attends church and goes to movies.

7 According to Terry, Father has her phone number, but he has not contacted her often

asking to speak to Tricia even on holidays or on Tricia’s birthday. Terry explained

that Tricia attends play therapy sessions one day a week. Terry acknowledged that

if she adopted Tricia, the law would not require her to allow Father to contact Tricia.

Even so, Terry testified that she believes Father and Tricia should have an ongoing

relationship with each other. Terry explained she would leave that option open if

Father would agree to contact Tricia consistently and agree to have his visits

supervised by the Department.

The trial court interviewed Tricia in chambers during the trial.5 In the

interview, Tricia stated she wanted to continue to live in her current placement if

Father could not live with her. She explained that she wants to continue to have a

relationship with her father, that she is happy in her current placement, and that she

would like to stay in school where she has “lots of friends.” Yet Tricia stated that, if

given a choice, she would like to accompany her Father and move to Florida.

During her testimony, Mary offered to serve as Tricia’s foster mother so

Father could maintain possessory rights to Tricia. Mary explained that based on

Father’s proposed plan, the court could avoid terminating Father’s rights and

5 See id. § 153.009(b), (e) (West 2014). 8 preserve his right to one day have his rights restored as Tricia’s managing

conservator. 6

In final argument, the Department acknowledged that Tricia desires to live

with Father. It argued, however, that living with Father is not in Tricia’s best interest

because he uses illegal drugs and failed to complete a drug rehabilitation program.

The Department also argued Father violated his family service plan and had not

shown the ability to provide Tricia with a safe place to live. The attorney ad litem

who the trial court appointed to represent Tricia in the case argued that denying the

Department’s request to terminate Father’s rights while allowing Father to continue

to work on his parenting skills is the plan she thought would best serve Tricia’s

interests. Father’s attorney argued that Father is in transition, has no resources to

care for Tricia, no plans to provide Tricia significant support required to live in

Texas, and no plan to house Tricia since Texas is not the state he was planning to

make his permanent home. Father’s attorney also argued the evidence showed that

Father loved Tricia, that Father was willing to care for her based on his decision to

remain in Texas, and that Father was exercising his rights to see her.

6 Father testified that placing Tricia with Mary was “never my plan[,]” but that Mary’s home was nice and would be a safe place for Tricia to live. He asked the trial court to consider placing Tricia in Mary’s home. 9 When the trial ended, the trial court announced its decision to find by clear

and convincing evidence that the Department established Father’s rights should be

terminated under subsections D, E, and O.7 The trial court then advised the parties

that the court was also ruling that terminating Father’s parental rights would be in

Tricia’s best interest. 8 The day the trial court announced its ruling, it signed a

judgment terminating Father’s rights.9 The judgment is consistent with the findings

the trial court announced at the conclusion of the trial.

Standard of Review

The standards that apply to the arguments Father raises in his brief require this

Court to review the trial court’s findings “‘in the light most favorable to the finding

to determine whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true.’” 10 To uphold a verdict terminating a father’s

right to parent a child, the record must establish, by clear and convincing evidence,

7 See id. § 161.001(b)(1)(D), (E), (O) (West Supp. 2018). 8 Id. § 161.001(b)(2). 9 The trial court’s judgment terminating Father’s parental rights appoints the Department as Tricia’s permanent managing conservator. It ordered no changes over Tricia’s current placement. 10 See In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). 10 (1) the parent committed one or more of the prohibited acts or omissions listed in

section 161.001(b)(1) of the Texas Family Code, and (2) that terminating the

parent’s rights is in the child’s best interest.11 Currently, the statute authorizing a

parent-child relationship to be terminated includes twenty-one grounds for

termination, any of which can authorize a factfinder to terminate a parent’s

relationship with the child. 12

Here, the trial court’s findings are based, in part, on three subsections of the

Family Code: subsection D, based on the trial court’s finding that Father knowingly

allowed Tricia to remain in conditions or surroundings that endangered her physical

or emotional well-being; subsection E, based on the trial court’s finding that Father

engaged in conduct or placed Tricia with persons who engaged in conduct that

endangered her physical or emotion well-being; and subsection O, based on the trial

court’s finding that Father violated the provisions of his court-ordered, family

service plan.13 A positive finding relying on any one of these grounds, when coupled

with a second and required finding that terminating the relationship is in the child’s

11 See Tex. Fam. Code Ann. § 161.001(b)(1), (b)(2) (West Supp. 2018). 12 See id. § 161.001(b)(1). 13 Id. § 161.001(b)(1)(D), (E), (O). 11 best interest, allows a trial court to render a judgment terminating the parent’s

relationship with his or her child.14

When reviewing a trial court’s findings, we must assume the trial court

resolved all facts in a way that favors the finding the appellant has challenged if the

evidence allowed the court to reasonably make the finding that is being challenged.15

When reviewing the evidence, we disregard all evidence that the trial court could

have disbelieved or found incredible.16 We must overrule a legal sufficiency

challenge if the evidence in the record allowed the trial court to form a firm belief

or conviction that the matter the Department had to prove was true. 17

In a factual sufficiency review, we consider and weigh all the evidence in the

record after giving deference to the trial court’s findings to avoid supplanting the

trial court’s verdict with our own.18 If, given the entire record, the disputed evidence

the trial court could not have credited in favor of its finding is so significant that the

14 See id. § 161.001(b)(2); In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). 15 In re J.F.C., 96 S.W.3d at 266.

16 Id.

17 In re J.L., 163 S.W.3d at 85. 18 In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). 12 trial court could not have reasonably formed a firm belief or conviction that the

finding that has been challenged could have been found to be true, the appellate court

will find the evidence is factually insufficient to support the challenged finding.19

Stated another way, we give the trial court’s findings due deference to avoid

substituting our judgment for the one the trial court made based on the evidence

admitted in the trial.20

Best Interest of the Child

On appeal, Father does not argue there was not enough evidence before the

trial court to support the trial court’s findings that Father violated subsections D, E,

and O of the Family Code.21 Instead, Father challenges the legal and factual

sufficiency of the trial court’s best-interest finding.

“In determining whether the evidence is legally sufficient to support a best-

interest finding, we ‘consider the evidence that supports a deemed finding regarding

best interest and the undisputed evidence,’ and ignore evidence a fact-finder could

reasonably disbelieve.” 22 Under the Family Code, a “rebuttable presumption [exists]

19 In re J.O.A., 283 S.W.3d at 345 (citing In re J.F.C., 96 S.W.3d at 267). 20 See In re H.R.M., 209 S.W.3d at 108. 21 Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O).

13 that the appointment of the parents of a child as joint managing conservators” will

serve the child’s best interest.23 Yet, this is a rebuttable presumption, and courts must

also presume that a prompt and permanent placement of the child in a safe

environment is in the child’s best interest. 24

When reviewing a best-interest finding, we consider the nine factors identified

by the Texas Supreme Court in Holly v. Adams. 25 These nine factors are not

22 In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (quoting In re J.F.C., 96 S.W.3d at 268). 23 Tex. Fam. Code Ann. § 153.131(b) (West 2014); see also In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (noting that a “strong presumption” exists favoring keeping a child with its parents). 24 Tex. Fam. Code Ann. § 263.307(a) (West Supp. 2018). 25 In Holley, the Texas Supreme Court applied these factors when reviewing a best-interest finding: • the child’s desires; • the child’s emotional and physical needs, now and in the future; • the emotional and physical danger to the child, now and in the future; • the parenting abilities of the parties seeking custody; • the programs available to assist the parties seeking custody; • the plans for the child by the parties seeking custody; • the stability of the home or the proposed placement; • the parent’s acts or omissions that reveal the existing parent-child relationship is improper; and • any excuse for the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). 14 exclusive, as courts may consider other factors when weighing whether terminating

a parent’s relationship with a child would be in the child’s best interest.26 The record

also need not contain evidence addressing each of the Holley factors “particularly if

the evidence [is] undisputed that the parental relationship endangered the safety of

the child.”27 And no one Holley factor is controlling. 28 Additionally, evidence of one

factor may be enough to support a finding that terminating the relationship is in the

child’s best interest. 29 The same evidence that supports a trial court’s findings under

subsections D, E, and O may also be relevant to the trial court’s best-interest

finding.30 Best-interest findings may be based on either direct, or circumstantial

evidence, or on subjective factors the trial court may have observed in the trial.31

When evaluating what is best for a child’s future, trial courts are allowed to consider

26 In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). 27 Id. at 27. 28 See In re A.P., 184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.). 29 Id. 30 See In re A.M., 495 S.W.3d 573, 581 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). 31 In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). 15 a parent’s past conduct when that conduct is relevant to the child’s best interest. 32 In

our review, we evaluate whether the evidence supports the best-interest finding from

the standpoint of the child, not the child’s parent.33

Analysis—Best-Interest Finding

Father argues there was not enough evidence to support the trial court’s

conclusion that terminating his rights served Tricia’s best interest. In his brief,

Father focuses on three aspects of the evidence to support his arguments: (1) the

statements Tricia made in chambers about wanting to maintain her relationship with

her father; (2) the evidence that he and Tricia are bonded; and (3) the evidence about

his plans for Tricia, which contemplated placing Tricia in Mary’s home while

allowing Father to preserve his possessory rights.

We look to all the evidence the trial court could have reasonably considered

relevant to its best-interest finding to evaluate whether the evidence supports the

finding.34 In contrast, Father focuses his arguments on the evidence that is contrary

32 Id. 33 See In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.) (citing In re S.A.P., 169 S.W.3d 685, 707 (Tex. App.—Waco 2005, no pet.)). 34 In re J.F.C., 96 S.W.3d at 266 (explaining that appellate courts should look at all the evidence in the light most favorable to the finding and credit evidence the factfinder could have reasonably found to be clear and convincing). 16 to the trial court’s finding without discussing why other evidence in the record does

not provide sufficient support for the finding. For example, while there is substantial

evidence in the record to show that Tricia and Father love each other and have

bonded, the trial court did not have to weigh that evidence more heavily than the

evidence that addressed Tricia’s need for a safe and stable home. 35 Stated another

way, Tricia’s desire to be with her father did not require the trial court to agree with

Father’s argument that terminating his rights was contrary to Tricia’s best interests.36

Under the Family Code, endangering a child means “to expose to loss or injury

[or] to jeopardize” a child’s emotional or physical health.37 “Conduct” includes both

a parent’s acts and their failures to act.38 Here, the evidence shows that Father had a

history of taking illegal substances, including methamphetamine. The evidence

shows Father was fully aware of the fact he needed to complete a drug treatment

program so that he could create a safe and stable home for his child. But the evidence

is undisputed that Father never completed a drug treatment program, so the trial court

35 In re M.Y.G., 423 S.W.3d 504, 514 (Tex. App.—Amarillo 2014, no pet.); see also In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.). 36 B.B. v. Tex. Dep’t of Family & Protective Servs., 445 S.W.3d 832, 838 (Tex. App.—El Paso 2014, no pet.). 37 In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). 38 In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). 17 could infer that he never gained the tools he needed to quit using drugs. The record

also allowed the trial court to infer that Father still uses illegal drugs.

Given the evidence in the record about Father’s drug abuse, the trial court

could reasonably infer that Father’s use of illegal drugs exposed Tricia to the

possibility that he could not adequately care for her or end up in jail.39 In his brief,

Father fails to address much of the evidence that is relevant to the trial court’s best-

interest finding. For example, Father never explains why the trial court could not

view his violations of the family service plan as relevant to its best-interest finding.

Father also does not argue he was unaware of the requirement that he complete a

drug treatment program to be considered a parent with the skills he needed to capably

raise a child.

39 See Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (noting evidence of drug use to explain that the parent engaged in an endangering course of conduct); 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 reviewing a challenge to a best-interest finding); Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86-87 (Tex. App.—Dallas 1995, no writ) (allowing factfinder to weigh a parent’s drug-related conduct in deciding what would be in the child’s best interest); see also Tex. Fam. Code Ann. § 263.307(b)(8) (West Supp. 2018) (providing that courts may consider the parent’s history of substance abuse by the parent or others having access to the child when considering whether the child’s parent is willing and able to provide the child with a safe environment). 18 The evidence showing Father had historically used illegal drugs and continues

to use them supports the trial court’s best-interest finding.40 The evidence that Father

refused to cooperate with a regular drug test program offers additional support for

the trial court’s inference that Father continues to use illegal drugs. 41 We conclude

the record contains clear and convincing evidence sufficient to allow the trial court

to decide that Father voluntarily, deliberately, and consciously engaged in a course

of conduct that endangered Tricia’s well-being.42

The evidence relevant to the conditions in which Father was housing Tricia

before the Department removed her from Father’s care proves additional support for

the trial court’s best-interest finding. The evidence allowed the trial court to infer

that Father did not have the parenting skills or the resources that are needed to raise

a child. 43 Father provided little financial support to assist the Department with the

40 See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (explaining that many findings relevant to a trial court’s conclusion about a parent’s violations of court- ordered, family service plans can support a trial court’s best-interest finding). 41 See In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied); In re C.R., 263 S.W.3d 368, 374 (Tex. App.—Dallas 2008, no pet.). 42 Id. 43 In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.—Fort Worth 2004, pet. denied); see also Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). 19 expenses of Tricia’s care. Father also testified that he lacks any prospects of getting

a better job in Texas. This testimony, when considered against a backdrop that Father

was using and continued to use meth, together with evidence about his lack of

income or prospects for a job that paid more allowed the trial court to infer that he

probably would never be able to provide Tricia with a safe or a stable home. While

Father offered an alternative plan allowing Mary to raise Tricia in her home, the trial

court may have inferred that plan did not serve Tricia’s best interest given that Tricia

and Mary are unrelated to one another and that Tricia and Mary first met on the first

day of the trial.44

Father argues that his plan for Tricia was better than the plan offered by the

Department. We review a trial court’s best-interest finding, however, in the light that

most favors the trial court’s finding.45 The trial court rejected Father’s plan, and its

decision was not unreasonable on the record that is before us here. The trial court

was entitled to consider the Department’s plan to be superior and in Tricia’s best

interest since it allowed Tricia to remain in a school where she has friends and gave

Tricia the prospect of being adopted and raised by an adult in a safe and stable home.

44 See In re A.B., 412 S.W.3d 588, 599 (Tex. App.—Fort Worth 2013), aff’d, 437 S.W.3d 498 (Tex. 2014). 45 In re J.L., 163 S.W.3d at 85. 20 We conclude the record contains legally and factually sufficient evidence

supporting the trial court’s best-interest finding. Therefore, we overrule Father’s sole

issue.

Conclusion

For the reasons we explained above, we affirm the trial court’s judgment.

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on May 6, 2019 Opinion Delivered June 13, 2019

Before McKeithen, C.J., Horton and Johnson, JJ.