in the Interest of B.E.T., a Child ( 2015 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00069-CV
IN THE INTEREST OF B.E.T., A CHILD
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 2013-422
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
The trial court terminated Evelyn’s 1 parental rights to her nine-year-old daughter, B.E.T.,
after finding that termination was warranted under Section 161.001(1)(D) and (E) of the Texas
Family Code. Evelyn appeals this ruling, contending the evidence was legally and factually
insufficient to support the trial court’s findings. After reviewing the record, we affirm the trial
court’s order. 2
I. Standard of Review
A trial court’s order terminating parental rights is reviewed as follows:
The termination of parental rights under the Texas Family Code requires
proof by clear and convincing evidence. TEX. FAM. CODE ANN. § 161.001(1).
Clear and convincing evidence is “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.” TEX. FAM. CODE ANN. § 101.007 (West 2014); In re J.F.C., 96
S.W.3d 256, 264 (Tex. 2002). When the legal sufficiency of evidence is
challenged on appeal, it is the duty of the appellate court to “look at all the
evidence 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.” J.F.C., 96 S.W.3d at 266. In an appeal, “we assume that the
[fact-finder] resolved disputed facts in favor of its finding if a reasonable fact-
finder could do so, but ‘disregard all evidence that a reasonable fact-finder could
have disbelieved or found to have been incredible.”’ In re K.W., 335 S.W.3d 767,
770 (Tex. App.—Texarkana 2011, no pet.) (quoting In re J.O.A., 283 S.W.3d 336,
1
We will refer to the appellant mother by the pseudonym Evelyn and to the child by her initials, B.E.T., to protect
the child’s privacy. See TEX. R. APP. P. 9.8.
2
To terminate a party’s parental rights, the trial court must find, by clear and convincing evidence, that (1) one of the
statutory grounds supports termination and (2) that termination is in the best interest of the child. See TEX. FAM.
CODE ANN. § 161.001(1), (2) (West 2014). Although a court could find that the statute supports termination but also
that termination is not in the child’s best interest, a court cannot find that termination is in the child’s best interest
unless it first finds that the statute supports termination. Thus, although Evelyn does not challenge the trial court’s
finding that termination is in the child’s best interest, if we were to find the evidence insufficient to support both
predicate statutory grounds, termination would not be warranted. See In re U.P., 105 S.W.3d 222, 229 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied). As explained below, however, we find the evidence sufficient to support
the trial court’s findings on the statutory allegations.
2
344 (Tex. 2009)). “‘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.”’ In re J.O.A., 283 S.W.3d
336, 344 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).
In re R.T.M., No. 06-14-00063-CV, 2014 Tex. App. LEXIS 12935, at *1–3 (Tex. App.—
Texarkana Dec. 4, 2014, no pet. h.).
II. Evidence Supporting Termination
A. Evidence of Drug Use and Violence in the Home
By her own admission, Evelyn, who was forty-eight at the time of trial, was a lifetime
abuser of alcohol and crack cocaine. She had been drinking alcohol since age sixteen. She
began using crack cocaine at age twenty-seven. She went as long as four years without using
cocaine, but by age thirty-five had resumed use of the narcotic. In 2006, the Texas Department
of Family and Protective Services (the Department) temporarily removed B.E.T. from the home,
but Evelyn continued to use alcohol and drugs after B.E.T. returned home. 3 Evelyn did state,
however, that her use was reduced “[c]onsiderably.” At trial, Evelyn testified that she had been
drug-free fifteen months and had been attending Alcoholics Anonymous (AA) meetings
regularly for about thirteen months.
3
June Combest-Tyler, a case supervisor with Child Protective Services (CPS), a division of the Department, testified
that an investigation or case had been initiated in November 2006, after the Department received allegations of
neglectful supervision of B.E.T. by Evelyn. That case was resolved when Evelyn agreed to sign over
conservatorship of B.E.T. to a relative; Evelyn was not to have unsupervised visits with the child. The current case
began when the Department received reports of Evelyn “using drugs to the point of being incapacitated and staying
in bed and not able to supervise” B.E.T. and “concerns that they were living in an RV and that it was winter at the
time and there was no adequate heat.” The record does not explain how B.E.T. came to live with Evelyn after the
2006 case was resolved.
3
For some time prior to the Department’s most recent removal of B.E.T. from the home,
Evelyn lived with her paramour, Gregory Parker. Despite Parker’s habit of staying up late into
the night smoking marihuana, Evelyn left B.E.T. in Parker’s care when Evelyn went to work.
Although Parker slept most of the day, Evelyn claimed that Parker was able to stay up three
hours in the mornings when he was caring for B.E.T. During this time, he fed B.E.T. and took
her to his sister’s, who then kept the child.
Evelyn acknowledged that she and Parker had smoked crack cocaine in the past, yet she
insisted they never engaged in this conduct in front of B.E.T. Evelyn explained that B.E.T. could
identify a crack pipe because she had seen someone smoking crack in a movie. Evelyn also
explained that B.E.T. could describe someone rolling a marihuana cigarette because she had seen
Parker doing so, but she added that she had forbidden him from doing so in front of B.E.T.
Nevertheless, Evelyn claimed to have been free of drugs and alcohol for more than a year prior
to trial. 4
B.E.T. lived with her half-sister, Tina Roland, after the current removal. Roland testified
that B.E.T. had “witnessed her mom smoking crack with a little pipe and [Evelyn and Parker]
taking pills and smoking weed . . . . She said it was a funny-looking cigarette. She thinks it was
weed.” B.E.T. told Martha Dykes, program director of the Northeast Texas Children’s
Advocacy Center (CAC), that one of Evelyn’s friends smoked “weed” and that Evelyn had held
B.E.T.’s nose to keep her from breathing it.
4
Evelyn also had her AA sponsor testify to her dedication and success in working on her recovery process.
4
B.E.T. also told Dykes she knew Parker smoked “weed” and that Parker smoked weed in
front of her frequently. B.E.T. said that on at least one occasion, Parker left her alone and went
to another person’s house to smoke weed. According to Dykes, B.E.T. also said that pills were
scattered on the floor and on a table in Parker’s house and that there was “weed everywhere”;
that Parker smoked weed in his car, but that he did not have his car now because it was locked; 5
and that Parker “smokes in front of me, he does pills, he does drugs.”
Evelyn agreed that her relationship with Parker was also violent. B.E.T. recounted one
drunken fight between Parker and Evelyn where Evelyn swung a knife, cutting Parker and
almost cutting B.E.T. Evelyn admitted having too much to drink on the night in question, but
she thought she had been wielding a cake spatula at Parker rather than a knife. She also thought
B.E.T. did not view the fight because she had gone to Evelyn’s father’s house. B.E.T. stated that
Parker had choked her mother and “almost killed” her and that she had seen the two adults
fighting on other occasions. Court Appointed Special Advocates (CASA) volunteer Shirley
Griffin and Roland both said they felt B.E.T. was frightened of Evelyn as a result of the fight
where Evelyn wielded a knife at Parker.
Approximately three months before the termination hearing, Evelyn pled guilty to a
felony charge of endangering a child which arose when B.E.T. tested positive for cocaine. 6 See
5
This correlates with Evelyn’ testimony that Parker would go outside to smoke marihuana in his car when B.E.T.
was in the house. Evelyn also testified that she did not think it unusual for a child of B.E.T.’s age to have such
specific knowledge about illegal drugs.
6
Several witnesses referenced a laboratory report showing the presence of cocaine in B.E.T.’s system. This report
was admitted for the limited purpose of showing why the Department became involved in the case. Evelyn did not
5
TEX. PENAL CODE ANN. § 22.041 (West 2011). Evelyn claimed that Parker caused B.E.T. to test
positive, but that the indictment had been filed against her because she was B.E.T.’s mother.
B. Sexual Abuse Allegation
Dykes also testified about the interview she conducted with B.E.T. regarding an alleged
sexual assault. A recording of the interview was introduced into evidence. In it, B.E.T.
described sleeping in a bed with a male cousin, Allen Wesley, and an adult woman. B.E.T.
claimed that Allen performed an act of sexual penetration upon B.E.T. and that this happened on
multiple occasions.
B.E.T. later told Evelyn about a burning she was feeling in her vagina, and Evelyn
examined her. Evelyn thought it might be the result of the soap B.E.T. was using, and she
changed soaps. Evelyn said B.E.T. told her that Allen was sleeping on the floor with her when
he rolled over and grabbed her. Evelyn thought B.E.T. had witnessed Allen having sex with a
woman who was also in the bed or on the floor with Allen and B.E.T.
B.E.T. told Griffin she had reported Allen’s assault on her to Evelyn, but that Evelyn
would not listen to her. Evelyn claimed she had asked a doctor or nurse to examine B.E.T.
during a routine visit “to know if anybody has poked, pried, inserted or touched [her] child,” but
nothing in the record substantiates this allegation. Yet, Roland later determined that the doctor
Evelyn claimed to have consulted would not have been able to conduct a sexual-assault
examination. Roland also said B.E.T. told her that a man stuck his “tee-pee” in B.E.T., making
object when various witnesses testified that B.E.T. had tested positive for cocaine, and she did not contest this
allegation.
6
B.E.T. “feel like she had to use the rest room on herself.” At trial, Evelyn said that many of the
facts revealed at trial were new to her. She also believed B.E.T. had not told her everything
about what happened with Allen. Yet, Dykes testified that criminal charges had been filed
against Allen, and Evelyn said that she had agreed to cooperate in the prosecution.
C. Other Aspects of B.E.T.’s Home Life
Additionally, several witnesses testified that Evelyn had placed controversial signs in her
yard. Although the record does not disclose their content, Roland testified that B.E.T.’s
classmates teased her about the signs and that it upset her. B.E.T.’s CPS case worker, Patricia
Johnson, testified that the signs “scared the child half to death.” According to Johnson, after
Roland modified the route she took taking B.E.T. to school in an effort to shield B.E.T. from
seeing the signs, Evelyn moved the signs to her father’s yard to ensure that B.E.T. would see
them.
Wilson Renfro, a psychologist who met and evaluated B.E.T., diagnosed her as having
attention deficit and hyperactivity disorder (ADHD). Renfro said that this condition was best
treated with medications, together with a stable home environment, steady parenting, and
discipline. B.E.T. told Renfro that Evelyn had been physically abusive to her and that she had
been sexually abused by a person named Allen when she was seven. Renfro opined that these
experiences, combined with the presence of drug abuse, would obviously not be helpful to
B.E.T.’s growth and development.
7
III. Evelyn’s Challenges to the Evidence
Although we will consider all the evidence before the trial court, we will first address
three areas in which Evelyn alleges the evidence was insufficient. Evelyn first claims that the
evidence that B.E.T. was sexually assaulted and that Evelyn knowingly entrusted B.E.T. to the
alleged perpetrator was not clear and convincing. Nevertheless, B.E.T. gave a detailed
description of sexual penetration by a man named Allen in her CAC interview with Dykes.
Other witnesses testified that B.E.T. relayed these accusations to them. This was evidence a
fact-finder could rely on to find that B.E.T. had been sexually assaulted. Similar evidence has
been found sufficient to support a criminal conviction for aggravated sexual assault. See TEX.
CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014); Scott v. State, 202 S.W.3d 405, 408 (Tex.
App.—Texarkana 2006, pet. ref’d); see also TEX. PENAL CODE ANN. § 22.021 (West Supp.
2014). Accordingly, the trial court could have found clear and convincing evidence that B.E.T.
was sexually assaulted.
It is true that the record does not clearly and convincingly establish that Evelyn continued
to leave B.E.T. in Allen’s care after she learned about the sexual abuse. Evelyn testified that she
ended contact with Allen and his girlfriend when B.E.T. told her about the sexual abuse.
Although Dykes testified that B.E.T. said Evelyn sent her back to the Allen home after learning
about the abuse, the interview between Dykes and B.E.T. does not reflect that statement.
Evelyn’s testimony on the issue was not clear. Nevertheless, whether Evelyn continued to
expose the child to Allen is not important, though, because we find substantial evidence to justify
the trial court’s findings on the record as a whole.
8
Evelyn next argues there was no evidence that she exposed B.E.T. to cocaine. Evelyn
testified that she and Parker did not use crack cocaine in B.E.T.’s presence. However, Roland
testified that B.E.T. told her she had “witnessed her mom smoking crack with a little pipe and
them taking pills and smoking weed.” 7 The trial court, as fact-finder, could have believed
Roland over Evelyn in resolving this conflict in testimony. Moreover, Evelyn pleaded guilty to
child endangerment based on the presence of cocaine in B.E.T.’s system. Although she claimed
at trial that Parker was to blame for this and that she was charged only because she was B.E.T.’s
mother, the trial court could have reasonably disbelieved her trial testimony and relied upon her
guilty plea. Accordingly, there is sufficient evidence to support the finding that Evelyn exposed
B.E.T. to cocaine.
Finally, Evelyn argues that she did not know B.E.T. was present when she cut Parker
with a knife. Although Evelyn said she thought B.E.T. had left the home when she told her to go
to Evelyn’s father’s house, other evidence suggests she was present. B.E.T. told the trial court
that she had witnessed the fight. Other witnesses testified that B.E.T. told them she saw the
fight. B.E.T. told the trial court Evelyn almost hit her with the knife, and B.E.T. told CASA
worker Griffin that she had been cut in the chin during the fight. The trial court could reasonably
have discounted Evelyn’s testimony and found that she knew her child was present when she cut
Parker. Consequently, there is sufficient evidence supporting the trial court’s findings in those
three areas challenged by Evelyn.
7
Presumably this referred to Evelyn and Parker; nobody lodged a hearsay objection.
9
IV. The Statutory Bases for Termination
A. Section 161.001(1)(D)
The evidence is also sufficient to support the trial court’s other findings. For example,
evidence that Evelyn’s relationship with Parker was characterized by alcohol, drug abuse, and
physical violence, supports the trial court’s first finding that Evelyn knowingly placed or
knowingly allowed B.E.T. to remain in conditions or surroundings which endangered the child’s
physical or emotional well-being. See TEX. FAM. CODE ANN. § 161.001(1)(D). Most noteworthy
was the fight in which Evelyn cut Parker with a knife and almost cut B.E.T. While this was the
most violent incident between the two of those recounted, there was testimony establishing this
was not their only violent encounter. In fact, the evidence supports the finding that their
relationship was characterized by domestic violence.
Likewise, despite Evelyn’s claim that she and Parker never used drugs when B.E.T. was
present, she did not deny using drugs with Parker. Although she theorized that B.E.T. ingested
cocaine while she was alone with Parker, no other evidence substantiates that theory. Roland
said that B.E.T. told her she had seen Evelyn using illegal drugs. There was also testimony
B.E.T. was afraid of Evelyn after she cut Parker with a knife. The inference that taking illegal
drugs and drinking alcohol to excess while serving as a parent places the child or allows her to
remain in conditions or surroundings that endanger the child’s emotional or physical well-being
is more than rational in this case. 8 Furthermore, “unlawful conduct by persons who live with the
child or with whom the child must associate on a regular basis is a part of the child’s conditions
8
B.E.T. also said in her interview with Dykes that on one occasion, Evelyn let B.E.T. drink beer.
10
or surroundings for purposes of section 161.001(1)(D).” In re M.Y.G., 423 S.W.3d 504, 511
(Tex. App.—Amarillo 2014, no pet.) (considering, inter alia, parent’s in-home association with
drug offenders in finding parent created endangering environment). Use of illicit drugs by either
Parker or Evelyn, or both, constitutes unlawful conduct.
Finally, “abusive or violent conduct by a parent or other resident of a child’s home can
produce an environment that endangers the physical or emotional well-being of a child.” In re
B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied). Similarly, “a parent’s failure
to remove himself and his children from a violent relationship endangers the physical or
emotional well-being of the children.” In re I.G., 383 S.W.3d 763, 770 (Tex. App.—Amarillo
2012, no pet.); see also D.O. v. Tex. Dep’t of Human Servs., 851 S.W.2d 351, 354 (Tex. App.—
Austin 1993, no writ), disapproved on other grounds by J.F.C., 96 S.W.3d at 267 (finding
evidence of child’s residence in unstable household where violence frequently occurred and
where ex-felons engaged in ongoing criminal activity resided was sufficient to sustain
termination based on finding parent allowed child to remain in surroundings that endangered
physical or emotional well-being).
In summary, the circumstances of this case, whether considered in the aggregate or in any
combination, could lead a rational fact-finder to find by clear and convincing evidence that
Evelyn knowingly placed B.E.T. or knowingly allowed B.E.T. to remain in conditions or
surroundings which endangered the child’s physical or emotional well-being. Consequently, the
evidence was legally and factually sufficient to support the trial court’s finding that termination
was warranted under Section 161.001(1)(D).
11
B. Section 161.001(1)(E) 9
The evidence is also sufficient to support the trial court’s finding that Evelyn engaged in
conduct or knowingly placed B.E.T. with persons who engaged in conduct that endangered the
child’s physical or emotional well-being. See TEX. FAM. CODE ANN. § 161.001(1)(E). Evidence
that Evelyn routinely left B.E.T. in Parker’s care when she knew he was a regular abuser of crack
cocaine and marihuana satisfies Section 161.001(1)(E). So does Evelyn’s regular use of crack
cocaine and marihuana. “Evidence of narcotics use and its effect on a parent’s life and her
ability to parent may establish that the parent has engaged in an ‘endangering course of
conduct.”’ Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 98 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (quoting 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. Drug use and its
effect on a parent’s life and his ability to parent may establish an endangering course of
conduct.”). 10 Likewise, the previously discussed violent episodes between Evelyn and Parker to
which B.E.T. was continually exposed is conduct that endangered B.E.T.’s physical and mental
9
A single-predicate ground, under Section 161.001(1), is sufficient to uphold a trial court’s decision to terminate a
parent-child relationship where the trial court also made a finding that termination was in the child’s best interest.
In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We will, however, also address Evelyn’ contention that the evidence
was insufficient to support the trial court’s finding that the evidence satisfied the requirements of Section
161.001(1)(E).
10
It is true that termination under subsection (1)(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.” Thus, the mere act of substance
abuse does not satisfy subsection (1)(E). Perez v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427,
436 (Tex. App.— El Paso 2004, no pet.). Nevertheless, multiple acts and omissions demonstrating the requisite
“voluntary and conscious course of conduct” by Evelyn are present here, and the trial court’s ruling is clearly
supported by the evidence.
12
well-being. Consequently, sufficient evidence supports the trial court’s findings that termination
was warranted under Section 161.001(1)(E).
V. Conclusion
The trial court, having listened to the evidence and having resolved the conflicts in the
testimony, could reasonably have formed a firm belief or conviction as to the truth of the
Department’s allegations. Accordingly, we find that the evidence was legally and factually
sufficient to support the trial court’s findings that termination was warranted under Texas Family
Code Section 161.001(1)(D) and (E).
We affirm the order of the trial court.
Ralph K. Burgess
Justice
Date Submitted: December 16, 2014
Date Decided: February 5, 2015
13