in the Interest of Z.C., a Child

• Court: Court of Appeals of Texas
• Decided: December 16, 2020
• Docket: 10-20-00158-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-20-00158-CV

IN THE INTEREST OF Z.C., A CHILD

From the 272nd District Court Brazos County, Texas Trial Court No. 19-000457-CV-272

MEMORANDUM OPINION

Tomalesha C. appeals from a judgment that terminated her parental rights to her

child, Z.C. Tomalesha complains that the evidence was legally and factually insufficient

for the trial court to have found that she committed the predicate acts set forth in Section

161.001(b)(1)(D), (E), and (O) and factually insufficient for the trial court to have found

that termination was in the best interest of the child. Because we find that the evidence

was legally and factually sufficient as to Section 161.001(b)(1)(E) and factually sufficient

as to best interest, we affirm the judgment of the trial court. STANDARD OF REVIEW

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. Id. 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.

FAMILY CODE SECTION 161.001(b)(1)

In her first and second issues, Tomalesha complains that the evidence was legally

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

predicate acts set forth in Family Code Section 161.001(b)(1)(D), (E), or (O). TEX. FAM.

CODE ANN. §161.001(b)(1)(D), (E), (O). Because we are required to consider the sufficiency

In the Interest of Z.C., a Child Page 2 of the evidence pursuant to Sections 161.001(b)(1)(D) or (E) if challenged, we will address

one of those grounds first. In re N.G., 577 S.W.3d 230, 235-36 (Tex. 2019). If the evidence

is sufficient as to that ground, it will not be necessary to address the other predicate

grounds because sufficient evidence as to only one ground in addition to the best interest

finding is necessary to affirm a termination judgment. Id. at 232-33.

Section 161.001(b)(1)(E) of the Family Code provides that a parent's rights may be

terminated if it is found by clear and convincing evidence that the parent has "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)(E). To "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). Under Section 161.001(b)(1)(E),

the relevant inquiry is whether evidence exists that the endangerment of the child's well-

being was the result of the parent's conduct, which includes acts, omissions, or failures

to act. In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.—Fort Worth 2004, pet. denied). 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. The specific danger to the child's well-

being may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533.

In making this determination, a factfinder court may consider conduct that occurred

before and after the child's birth, in the child's presence and outside the child's presence,

and before and after removal by the Department. In re J.O.A., 283 S.W.3d 336, 345 (Tex.

In the Interest of Z.C., a Child Page 3 2009). A parent's past endangering conduct may create an inference that the parent's past

conduct may recur and further jeopardize a child's present or future physical or

emotional well-being. See In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no

pet.).

In our endangerment analysis, drug use may constitute evidence of

endangerment. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Domestic violence and a

propensity for violence may also constitute evidence of endangerment. In re C.J.O., 325

S.W.3d 261, 265 (Tex. App.—Eastland 2010, 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." In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth

2004, pet. denied). Finally, we may consider Tomalesha’s failure to complete her service

plan in determining whether her conduct risks endangering the child. In re M.R., 243

S.W.3d 807, 818 (Tex. App.—Fort Worth 2007, no pet.).

RELEVANT FACTS

In 2015, Tomalesha came into the care of the Department at age 15 after her mother

refused to pick her up after Tomalesha had been detained for threatening a law

enforcement officer. During the years that followed until she aged out of foster care,

Tomalesha was placed in and unsuccessfully discharged from many residential treatment

centers and hospitals due to her aggressive and violent behaviors toward others and

herself. Tomalesha was eventually sent to Colorado in a fictive kin placement where

In the Interest of Z.C., a Child Page 4 Tomalesha ran away multiple times. Tomalesha was sexually involved with at least two

adult men who were years older than her and was allegedly sexually trafficked by at least

one of the men who was allegedly involved in a gang. Tomalesha got pregnant twice

during the 11 months she spent in Colorado. The first was terminated by abortion, and

the second was with Z.C., with whom she was pregnant when she returned to Texas. The

Department had to move Tomalesha from Colorado in the middle of the night because of

threats one of the men, nicknamed “Monty,” had made against her and the woman with

whom she was placed in Colorado. Even after that, Tomalesha remained in contact with

Monty throughout the proceedings.

Upon returning to Texas, Tomalesha’s aggressive behaviors continued with more

unsuccessful hospital and residential treatment center placements. Tomalesha left a

placement for pregnant teens after a week because she did not like their cell phone policy.

She was placed with another fictive kin but was removed at the request of both

Tomalesha and the fictive kin after a month. Tomalesha was placed with another fictive

kin that the Department did not approve where she remained until Z.C.’s removal.

Initially, Tomalesha seemed to do well in the last placement. When Z.C. was

approximately two months old, he was diagnosed with club feet, which required

substantial and precise medical care, and Tomalesha was very involved in his medical

care early on. Tomalesha’s caseworker would transport Z.C. and Tomalesha to his

medical appointments and assisted her as much as possible.

In the Interest of Z.C., a Child Page 5 Christopher, an adult male who was on probation for possession of marijuana,

started residing in Tomalesha’s bedroom at the placement. Tomalesha claimed that he

assaulted her several times and sexually assaulted her once during that time but she

refused to make him leave.

Because the placement was becoming unstable, the Department found a foster care

home that was going to take both Tomalesha and Z.C., but Tomalesha refused to go

because she wanted to remain near Christopher. While transporting Tomalesha and Z.C.

to an appointment, the caseworker discovered that Tomalesha had failed to get a

prescription filled for Z.C. for a yeast infection for five days because she had either lost it

or it had been improperly filled out and Tomalesha had not attempted to get it replaced.

Tomalesha also told the caseworker that she was not leaving Christopher and threatened

to run away to Colorado with Z.C. if the Department attempted to interfere. The

caseworker also noted that Z.C.’s diaper bag smelled like marijuana. Tomalesha claimed

that her fictive kin was smoking marijuana in the home and that she begged the

caseworker to move her, although the caseworker did not agree with this.

The fictive kin called the caseworker to let her know that she had kicked

Christopher out of the house but that Tomalesha had packed up all of Z.C.’s belongings

and left with Z.C. Tomalesha had also made a Facebook post immediately prior that was

construed as a suicide threat. The caseworker immediately called Tomalesha who met

the caseworker back at the placement. Tomalesha denied that she was going to harm

In the Interest of Z.C., a Child Page 6 herself or Z.C. It was then discovered that Tomalesha was not taking her anti-anxiety

medication. After this, Z.C. was removed from Tomalesha. Z.C. tested positive for

marijuana after he was removed.

After his removal, Tomalesha was ordered to complete a service plan which, in

part, required her to complete a psychological evaluation, to participate in drug tests, to

attend counseling, and to maintain a stable home and employment. Tomalesha’s

psychological evaluation was largely invalid due to inconsistent answers and deception.

Tomalesha refused to acknowledge that she had any mental health issues but did admit

to multiple suicide attempts from the age of 11. The doctor was extremely concerned

about Tomalesha’s refusal to acknowledge any mental health issues and the risk of child

abuse found during the testing.

Tomalesha was assigned to two counselors by the Department early in the case

but Tomalesha attended only one session with one of them and refused to attend again.

Approximately three months before the termination trial in January, Tomalesha found a

counselor on her own and attended three sessions with him in November and December

before she stopped communicating with the third counselor altogether.

After Z.C.’s removal in February, Tomalesha did not have a residence but moved

from couch to couch with friends until her Colorado fictive kin assisted her with getting

an apartment in November. She also got a job in November at IHOP which she quit to

In the Interest of Z.C., a Child Page 7 take another job in December. She provided pay stubs from only the IHOP job to the

Department.

Tomalesha refused to take two drug screens later in the case because she had

braids in her hair. After the first refusal, the caseworker informed Tomalesha that another

test would be coming and not to have braids at that time but Tomalesha got braids again

and refused to be tested because of them, which resulted in two presumed positive drug

tests.

ANALYSIS

When we consider all of Tomalesha’s long-standing mental health and anger

issues toward herself and others, which had been consistent throughout the

Department’s involvement with her, her refusal to disassociate herself from multiple

adult men who she claimed were also physically and sexually violent toward her, and

her overall instability taken with her refusal to be placed together with her son in foster

placements which were safe and appropriate or to acknowledge or address her mental

health and anger issues before and after Z.C.’s removal, we find that the evidence was

legally and factually sufficient for the trial court to have found that Tomalesha "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)(E). Because we have found that the evidence was legally and factually

In the Interest of Z.C., a Child Page 8 sufficient as to Section 161.001(b)(1)(E), we do not address the sufficiency of the evidence

as to subsections (D) or (O). We overrule issues one and two.

BEST INTEREST

In her third issue, Tomalesha complains that the evidence was factually

insufficient for the trial court to have found that termination was in the best interest of

the child. In determining the best interest of a child, a number of factors have been

consistently considered which were set out in the Texas Supreme Court's opinion, Holley

v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is not exhaustive, but simply

indicates factors that have been or could be pertinent in the best interest determination.

Id. There is no requirement that all of these factors must be proved as a condition

precedent to parental termination, and the absence of evidence about some factors does

not preclude a factfinder from reasonably forming a strong conviction that termination is

in the children's best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence

establishing one of the predicate grounds under section 161.001(b)(1) also may be

relevant to determining the best interest of the children. See C.H., 89 S.W.3d at 27-28.

Z.C. is too young to express his desires regarding best interest but does have

significant health issues that will require strict monitoring and treatment to prevent

regression and further surgeries. While Tomalesha showed that she was somewhat

informed about Z.C.’s needs and treatment, her failure to fill a prescription for an

unrelated issue shows a lack of concern for Z.C.’s overall health and physical well-being.

In the Interest of Z.C., a Child Page 9 Additionally, it is questionable how diligent Tomalesha would be in maintaining doctor

visits without the Department’s assistance.

The evidence showed that Tomalesha put her needs and interests before that of

her child by refusing to move with Z.C. to a safe placement, allowing Z.C.’s exposure to

drugs and violence, refusing to acknowledge or address her mental health and anger

issues, her self-harming behaviors, and prioritizing relationships with adult men who

have assaulted her physically and sexually. In her brief to this Court, Tomalesha attempts

to place the blame on the Department for what has transpired in her life since 2015; and

perhaps to some degree that might be true. However, although unfortunate, what has

happened to Tomalesha has occurred in large part because of her violent and

unacceptable behavior and pattern of bad decisions that started before her involvement

with the Department. Tomalesha’s choices and actions both before and after Z.C.’s birth

and after his later removal have demonstrated that the parent-child relationship between

Z.C. and Tomalesha is not stable or safe for Z.C.

Additionally, Z.C. had been living with a foster parent for approximately five

months at the time of the trial who was very involved in his medical care for his club feet

and wanted to adopt him if the termination was granted. Z.C. was very bonded to his

foster parent. This placement was safe and stable and Z.C. was receiving the strict

medical care needed to prevent regression for his feet and for his other issues.

In the Interest of Z.C., a Child Page 10 Viewing the evidence by the appropriate standards and considering the evidence

in relation to the factors set forth in Holley, we find that the evidence was factually

sufficient for the trial court to have found that termination was in the best interest of Z.C.

We overrule issue three.

CONCLUSION

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

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Neill Affirmed Opinion delivered and filed December 16, 2020 CV06

In the Interest of Z.C., a Child Page 11