In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-21-00100-CV ________________________
IN THE INTEREST OF W.T., A CHILD
On Appeal from the 46th District Court Wilbarger County, Texas Trial Court No. 28,883; Honorable Dan Mike Bird, Presiding
July 20, 2021
MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, W.T., appeals from the trial court’s order terminating his parental rights
to his child, W.T. 1 By a sole issue, he contends the trial court committed reversible error
1 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM.
CODE ANN. § 109.002(d) (West Supp. 2020). See also TEX. R. APP. P. 9.8(b). To avoid confusion, the father will be referred to as W.T. and his child as “child” or “daughter.” The child’s mother’s parental rights were also terminated but she did not appeal. in finding by clear and convincing evidence that termination of his parental rights was in
the child’s best interest. As reformed, we affirm the trial court’s order.
BACKGROUND
On September 26, 2019, Appellee, the Texas Department of Family and Protective
Services, received a report that the child at issue, then four months old, was living with
W.T. in a home without utilities. The living conditions were unsanitary with debris and
garbage “scattered everywhere.” There were allegations that the parents were also using
methamphetamines. Both parents declined drug tests and the Department obtained a
court order to aid in the investigation. The order allowed an investigator access inside
the home to test the child for drugs. A hair follicle test produced a positive result for high
levels of methamphetamines and amphetamines. The child was then removed from the
home and placed with a foster family.
During the proceedings, the child’s mother was incarcerated in Galveston for
assaulting the child’s grandmother. W.T. has a criminal history and a pending criminal
charge for child endangerment that stems from the child’s removal. He invoked his Fifth
Amendment privilege to not testify during the termination proceedings.
At the final hearing, the caseworker offered evidence that neither parent had
completed the family service plans. W.T. had a positive test result in March 2020, and
his numerous no-shows for testing were presumed positive by the Department. The
caseworker testified to W.T.’s criminal history for possession, burglary, theft, and the
pending endangerment charge. She recommended termination of W.T.’s parental rights
and opined that to do so was in the child’s best interest.
2 At the conclusion of the testimony, the trial court found sufficient evidence to
terminate W.T.’s parental rights on the following predicate grounds:
(1) knowingly placed or knowingly allowed his child to remain in conditions or surroundings which endangered her physical or emotional well-being;
(2) engaged in conduct or knowingly placed his child with persons who engaged in conduct which endangered her physical or emotional well- being;
(3) constructively abandoned his child who had been in the permanent or temporary managing conservatorship of the Department or an authorized agency for not less than six months and: (a) the Department or authorized agency had made reasonable efforts to return the child; (2) he had not regularly visited or maintained significant contact with the child; and (3) he had demonstrated an inability to provide the child with a safe environment; and
(4) failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the child’s return who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the child’s removal from the parent under chapter 262 for abuse and neglect.
The trial court also found that termination of W.T.’s parental rights was in his child’s best
interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), and (O), (b)(2) (West
Supp. 2020).
APPLICABLE LAW
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) of the Code and that termination of that
relationship is in the best interest of the child. See § 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. § 161.206(a) (West Supp. 2020). “‘Clear and convincing evidence’ means the
3 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.” § 101.007 (West
2019).
STANDARD OF REVIEW
The natural right existing between parents and their children is of constitutional
magnitude. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed.
2d 599 (1982). Consequently, termination proceedings are strictly construed in favor of
the parent. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are
not absolute, and it is essential that the emotional and physical interests of a child not be
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 of the Texas
Family Code 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, even evidence that does more than raise
surmise and suspicion will not suffice unless that evidence is capable of producing 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
4 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). 2 We must determine
whether the evidence is such that a fact finder could reasonably form a firm belief or
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In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-21-00100-CV ________________________
IN THE INTEREST OF W.T., A CHILD
On Appeal from the 46th District Court Wilbarger County, Texas Trial Court No. 28,883; Honorable Dan Mike Bird, Presiding
July 20, 2021
MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, W.T., appeals from the trial court’s order terminating his parental rights
to his child, W.T. 1 By a sole issue, he contends the trial court committed reversible error
1 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM.
CODE ANN. § 109.002(d) (West Supp. 2020). See also TEX. R. APP. P. 9.8(b). To avoid confusion, the father will be referred to as W.T. and his child as “child” or “daughter.” The child’s mother’s parental rights were also terminated but she did not appeal. in finding by clear and convincing evidence that termination of his parental rights was in
the child’s best interest. As reformed, we affirm the trial court’s order.
BACKGROUND
On September 26, 2019, Appellee, the Texas Department of Family and Protective
Services, received a report that the child at issue, then four months old, was living with
W.T. in a home without utilities. The living conditions were unsanitary with debris and
garbage “scattered everywhere.” There were allegations that the parents were also using
methamphetamines. Both parents declined drug tests and the Department obtained a
court order to aid in the investigation. The order allowed an investigator access inside
the home to test the child for drugs. A hair follicle test produced a positive result for high
levels of methamphetamines and amphetamines. The child was then removed from the
home and placed with a foster family.
During the proceedings, the child’s mother was incarcerated in Galveston for
assaulting the child’s grandmother. W.T. has a criminal history and a pending criminal
charge for child endangerment that stems from the child’s removal. He invoked his Fifth
Amendment privilege to not testify during the termination proceedings.
At the final hearing, the caseworker offered evidence that neither parent had
completed the family service plans. W.T. had a positive test result in March 2020, and
his numerous no-shows for testing were presumed positive by the Department. The
caseworker testified to W.T.’s criminal history for possession, burglary, theft, and the
pending endangerment charge. She recommended termination of W.T.’s parental rights
and opined that to do so was in the child’s best interest.
2 At the conclusion of the testimony, the trial court found sufficient evidence to
terminate W.T.’s parental rights on the following predicate grounds:
(1) knowingly placed or knowingly allowed his child to remain in conditions or surroundings which endangered her physical or emotional well-being;
(2) engaged in conduct or knowingly placed his child with persons who engaged in conduct which endangered her physical or emotional well- being;
(3) constructively abandoned his child who had been in the permanent or temporary managing conservatorship of the Department or an authorized agency for not less than six months and: (a) the Department or authorized agency had made reasonable efforts to return the child; (2) he had not regularly visited or maintained significant contact with the child; and (3) he had demonstrated an inability to provide the child with a safe environment; and
(4) failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the child’s return who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the child’s removal from the parent under chapter 262 for abuse and neglect.
The trial court also found that termination of W.T.’s parental rights was in his child’s best
interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), and (O), (b)(2) (West
Supp. 2020).
APPLICABLE LAW
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) of the Code and that termination of that
relationship is in the best interest of the child. See § 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. § 161.206(a) (West Supp. 2020). “‘Clear and convincing evidence’ means the
3 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.” § 101.007 (West
2019).
STANDARD OF REVIEW
The natural right existing between parents and their children is of constitutional
magnitude. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed.
2d 599 (1982). Consequently, termination proceedings are strictly construed in favor of
the parent. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are
not absolute, and it is essential that the emotional and physical interests of a child not be
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 of the Texas
Family Code 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, even evidence that does more than raise
surmise and suspicion will not suffice unless that evidence is capable of producing 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
4 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). 2 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. In re J.F.C., 96 S.W.3d at 266.
We consider whether disputed evidence is such that a reasonable fact finder could not
have resolved that disputed evidence in favor of its finding. If, in light of 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.
BEST INTEREST
W.T. does not challenge any of the statutory grounds for termination and as a
result, the trial court’s findings related to those grounds are final. Instead, he argues the
trial court committed reversible error in finding sufficient evidence that termination of his
parental rights was in his child’s best interest. We disagree.
The Department was required to prove by clear and convincing evidence that
termination of W.T.’s parental rights was in his child’s best interest. § 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
2 W.T. presents his factual insufficiency argument relying on a traditional factual sufficiency standard which the Supreme Court determined was inadequate to afford the protections inherent in the clear and convincing standard of proof. See In re J.F.C., 96 S.W.3d at 264-66.
5 belief or conviction that termination of his parental rights was in his child’s best interest
can we conclude the evidence is legally insufficient. Id. (citing In the Interest of J.F.C.,
96 S.W.3d at 266).
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 § 263.307(a) (West Supp. 2020). To assess the trial
court’s best interest finding, we consider factors enumerated in the non-exhaustive list
set forth in section 263.307(b) of the Family Code. One of those factors is providing the
child with a safe physical home environment. § 263.307(b)(12)(D).
Additionally, the Supreme Court has set out other factors to 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. The absence of evidence of one or more of these factors 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.
6 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.).
ANALYSIS
The argument portion of W.T.’s brief is a repetition of an outdated standard of
review for cases in which parental rights are terminated. He presents two sentences as
his arguments for reversal of the trial court’s termination order. Those arguments are that
(1) the Department failed to present sufficient evidence of the Holley factors and (2) the
evidence does not rebut the presumption that it is in a child’s best interest to be raised by
a parent. We disagree with his assessment of the evidence.
Initially, the child was placed with a foster family where she was doing well. The
Department later conducted a kinship safety evaluation of a nephew of the child’s mother
as a possible placement with relatives. 3 At a hearing on a Motion to Move Child from
Current Placement, the Department advised the trial court that a home study had been
3 The Department investigator explained that a kinship safety evaluation was conducted to determine if the new placement was a safe environment. The male familial placement has a criminal history but it was outside the five-year window which would have resulted in automatic denial of a home study.
7 approved and the nephew and his wife were in the process of obtaining a license to adopt
the child if that option became available. The caseworker confirmed that the nephew and
his wife have great jobs. She also testified that it would be in the child’s best interest to
stay connected with family.
The nephew testified that he and his wife wish to care for W.T.’s child. The nephew
attested to the ability to provide the child with a loving family and assured the trial court
that all her needs would be met. They have two other children and have a stable home
near San Antonio. They have stable employment with an energy company. They own a
two-story house with four bedrooms and two bathrooms and also have a guest house
with two bedrooms and one bathroom.
Regarding his criminal history, the nephew explained he had a DWI in 2012 and a
burglary in 2013. An assault charge against a former girlfriend who was drunk was
dismissed the next day. The caseworker testified she had no concerns with the nephew’s
criminal past. She opined that the nephew did not have a problem with alcohol.
The nephew’s wife testified that before her employment with the energy company
she served in the Air Force for thirteen years. She testified that she and her husband are
“huge family” persons and they want to raise W.T.’s child rather than have her raised by
strangers. They also have a support group of family and friends they depend on if they
need assistance with their children. The trial court approved a change in foster parents.
At the final hearing, the caseworker testified the child, almost two years old at that
time, was too young to express her desires. However, the child does refer to the foster
parents as “mom” and “dad” and is bonded with them. See In re U.P., 105 S.W.3d 222,
8 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The caseworker continued that
the child’s familial placement provides her with a safe and stable home environment and
plans for a positive future. The child attends daycare where she has a curriculum to
prepare her for schools that have already been selected. She takes dance classes and
is involved with the family’s church. The family enjoys outdoor activities. The caseworker
did not have any concerns with the child’s placement.
Testimony was presented that the child’s mother has since given birth to another
child and that child is also in the care of the mother’s nephew and his wife. The
caseworker was unsure whether the foster parents had possessory rights. The
placement of the new child allows W.T.’s daughter to be raised with her sibling. The long-
term plan for the nephew and his wife is to adopt W.T.’s daughter which will provide her
with permanency. When the caseworker was asked if it was in W.T.’s daughter’s best
interest to return her to her father, she answered “[n]o” and recommended termination of
his parental rights.
The trial court was also allowed to consider evidence in support of the predicate
grounds in making the best interest determination. The evidence established that W.T.
had a history of drug use. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). He also had
an extensive criminal history and a pending charge for endangering his daughter. The
caseworker confirmed that W.T. did not complete his family service plan which was
reviewed with him on several occasions. Based on the evidence presented, we conclude
it was sufficient to meet the clear and convincing burden of proof required to support the
trial court’s finding that termination of W.T.’s parental rights was in his daughter’s best
interest. W.T.’s sole issue is overruled.
9 REFORMATION OF FINAL ORDER
The Final Order in Suit Affecting Parent-Child Relationship with Termination of
Parental Rights reflects that W.T. is a male child. However, the caseworker’s testimony
and the Petition in Aid of Investigation for Child Abuse reflect that W.T. is a female child.
We reform page 2 of the final order to reflect “Female” in the space provided for “Sex”
which identifies the child’s gender.
CONCLUSION
As reformed, the trial court’s order terminating W.T.’s parental rights to his
daughter is affirmed.
Patrick A. Pirtle Justice