in the Interest of R.A., R.G., and J.G., Children ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00252-CV
___________________________
IN THE INTEREST OF R.A., R.G., AND J.G., CHILDREN
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-104611-17
Before Kerr, Pittman, and Birdwell, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Mother and Father appeal the trial court’s judgment terminating their parental
rights. 1 See Tex. Fam. Code Ann. § 161.001(b)(1), (2). We affirm.
After hearing the evidence, the trial court terminated Mother’s parental rights,
finding that Mother had (1) knowingly placed or knowingly allowed the children to
remain in conditions or surroundings that endangered the children’s physical or
emotional well-being (subsection (b)(1)(D)), (2) engaged in conduct or knowingly
placed the children with persons who engaged in conduct that endangered the
children’s physical or emotional well-being (subsection (b)(1)(E)), and (3) been the
cause of the children’s being born addicted to alcohol or a controlled substance other
than a controlled substance legally obtained by prescription (subsection (b)(1)(R)); and
that termination was in the children’s best interest (subsection (b)(2)). See id.
§ 161.001(b)(1)(D), (E), (R), (b)(2).
The trial court also terminated Father’s parental rights, making two of the same
grounds findings (subsections (b)(1)(D) and (E)), but instead of a subsection (b)(1)(R)
finding, the trial court found that Father had constructively abandoned the children
(subsection (b)(1)(N)); the trial court also found that termination of Father’s parental
1
To protect the parties’ privacy in this case, we identify the children and other
relatives by fictitious names and their mother and the appealing father simply as
Mother and Father. See Tex. Fam. Code Ann. § 109.002(d).
2
rights was in the children’s best interest (subsection (b)(2)). See id. § 161.001(b)(1)(D),
(E), (N), (b)(2).
On appeal, emphasizing that at one point the Texas Department of Family and
Protective Services had planned to place the children with her in a monitored return,
see id. § 263.403(a) (“Monitored Return of Child to Parent”), Mother contends that the
evidence is legally and factually insufficient to support the trial court’s best-interest
finding. As part of her sufficiency complaint, she also argues that public policy
prohibits terminating her rights when a safe relative placement is possible, and in her
case, she had proposed placing the children with either a paternal grandmother or
with her cousin.
Father too contends that the evidence is legally and factually insufficient to
support the trial court’s finding that terminating his parental rights was in the
children’s best interest and points to his diligence in working his service plan. Like
Mother, Father contends that the trial court should have placed the children with his
mother or with Mother’s cousin rather than terminate his parental rights.
Preliminary Matters
This case involves numerous children and several fathers. Not all the children
and not all the fathers are parties to this appeal, but they are part of the testimony’s
overall evidentiary framework.
Mother has seven children—Alfred, Betty, Conner, Danielle, Edward, Frances,
and Ginette.
3
Mother’s first four children are not the subject of this suit: Alfred, Betty, and
Conner live with one of Mother’s aunts, while Danielle lives with her father. But the
trial court terminated Mother’s parental rights to her last three children—Edward,
Frances, and Ginette—and Mother has appealed the judgment as to all three.
The trial court terminated Edward’s father’s parental rights, but Edward’s
father has not appealed.
Finally, the trial court terminated the parental rights of Frances and Ginette’s
father (Father), and he has appealed the decision as to those two children.
At the time of trial in August 2018, Edward and Frances were three and two
years old, respectively; Ginette, the youngest, was only a year old. Mother was 27 years
old, and Father was 30.
For further context, the trial court was approaching what one trial-court judge
has referred to as the “drop-dead dismissal date.” See In re C.D.S.-C., No. 02-12-
00484-CV, 2013 WL 1830398, at *14 (Tex. App.—Fort Worth May 2, 2013, no pet.)
(mem. op.). That is, because the trial court had already granted the one allotted
dismissal-date extension, the family code prohibited it from further extending the
deadline. See Tex. Fam. Code Ann. § 263.401(c).2 At the time of trial in August, then,
2
The Department filed its original petition on March 6, 2017, which made the
dismissal date March 12, 2018. See Tex. Fam. Code Ann. § 263.401(a). The trial court
later extended the dismissal date to September 7, 2018. See id. § 263.401(b). The case
was tried before the court on August 7, 2018.
4
the trial court was threatened with losing jurisdiction over the case in roughly a
month. See id.
Evidence
A. The removals came in two steps.
At the time of trial, Department investigator Latrecia Woods had a specialized
assignment in the drug-impact unit. Woods responded to a referral in early March
2017 because Mother, who was both pregnant and positive for amphetamine, 3 was in
an emergency room being treated for cervical pain after chasing Father during an
argument.
Upon checking Mother’s CPS history, Woods discovered that it was extensive.
Mother had six children at the time, only two of whom (Edward and Frances) were in
her care. Because of Mother’s drug use, her other four children were living with
relatives. According to Woods, the concerns this time were the same as when Mother
had interacted with the Department before: domestic violence and drugs.
When Woods interviewed Mother, Mother admitted being upset with Father
and chasing him around a car but denied that the argument became physical. Mother
also admitted using methamphetamine, and although she could not provide an exact
date, she indicated that she used it about every other month. And Mother admitted
3
Amphetamine is a metabolite of methamphetamine, which Mother admitted
using. See Halloran v. State, No. 09-16-00187-CR, 2018 WL 651223, at *1 (Tex. App.—
Beaumont Jan. 31, 2018, no pet.) (mem. op., not designated for publication).
5
knowing she was pregnant when she last used. Although Woods discussed with
Mother how drugs could impact her unborn child, Mother not only dismissed
Woods’s concerns but also acknowledged not receiving any prenatal care during her
current pregnancy.
During the interview, Woods wanted to know the whereabouts of Edward and
Frances. Mother told Woods that they were with her friends Billy and Delana Smith.
So Woods later went to the Smiths’ home and, once there, determined it was not safe.
In addition to Edward, Frances, and the Smiths, Woods found seven other children, a
grandchild of the Smiths, and the grandchild’s mother. Woods discovered that the
home was severely infested with bed bugs, and she concluded that no one there was
watching the children. For example, Woods saw Frances put a penny in her mouth,
but no one noticed. Because Frances was only one or two years old at the time,
Woods feared that Frances could have choked. Woods then contacted Mother to see
if there was anywhere else the children could stay, but Mother had no suggestions.
Mother could not even give Woods her own address. Mother explained that
she and Father had been staying at different motels and—when the argument
occurred—at a friend’s house, but after that incident they were no longer welcomed
there. When Woods asked for the friend’s name and address, Mother could provide
only a first name and no address.
6
The Department removed Edward and Frances and succeeded in having the
court appoint it as the children’s temporary managing conservator. Absent a viable
relative placement, the children went into foster care.
Although Woods tried to get Mother to seek drug treatment, Woods testified
that Mother continued to use methamphetamine until giving birth to Ginette later
that same month—the meconium tested positive for amphetamine, a metabolite of
methamphetamine. Father appeared at the hospital for Ginette’s birth, so Woods had
him drug tested as well. Despite Father’s claim that he would test positive only for
marijuana, he tested positive for both methamphetamine and amphetamine.
Father wanted to place the children with his mother, but his mother lived in a
small, one-bedroom apartment in Waco and wanted only Ginette. Because Mother
did not want the children split up, the Department did not consider Father’s mother
for placement. Whether Father’s mother would be sufficiently protective also
concerned Woods; Woods seemed to suggest that despite Father’s mother’s knowing
about her son’s past drug issues and his current situation, which included being
around Edward and Frances, she did nothing. Father had no other placement options
to propose.
Shortly after Ginette’s birth, the trial court appointed the Department as her
temporary managing conservator. By May, the Department had successfully placed all
three siblings in the same foster home.
7
B. Mother had a pattern of using drugs, getting clean, and relapsing.
Mother testified that she started drinking alcohol when she was 13 years old,
smoking marijuana when she was 14, and using methamphetamine, Xanax, and
Ecstasy when she was 17. Also by age 17, she had had her first two children and her
first CPS case due to her drug use. While that case was in progress, she had her third
child, Conner, and the Department removed that child too.
Sent to an outpatient program, Mother failed to complete it, claiming at the
trial of this case that it was because she could not get rides. Ultimately, Mother signed
over her rights to the three children to her aunt, “gave up [her] sobriety,” and started
using methamphetamine, Xanax, and marijuana again. This was in 2009.
Mother then went to Mexico to live with her ex-husband, during which time
she allegedly stayed clean for six to seven months. But when she returned to the
United States in 2011, she met Joseph, started back on drugs, and in December
2012 had her fourth child, Danielle.
Mother also had another CPS case filed. Danielle was placed with Joseph’s
brother; Mother’s parental rights remained intact. Danielle is now living with Joseph,
her father.
Mother testified that after 2012 she would have drug-free stretches of three or
four months. She maintained that neither Edward (born in 2014) nor Frances (born in
2016) tested positive for drugs at their births. Ginette, however, was positive for
methamphetamine at birth, and Mother took responsibility for that.
8
Months after the removals, in September 2017, Mother’s life took a negative
turn when she was indicted for using a vehicle without authorization, an offense that
allegedly occurred in late July 2017.
But not every turn was for the worse. In November 2017, Mother successfully
completed the 30-day Nexus Recovery Center drug-treatment program. And that
same month, because she was working her services, the trial court extended the
dismissal date. In January 2018, after Mother pleaded guilty to the unauthorized-use-
of-a-vehicle charge, a criminal district court placed her on deferred-adjudication
community supervision.
But later that month, on two separate specimen-collection dates two weeks
apart, Mother tested positive for amphetamine and methamphetamine. Mother
admitted at trial that ten months after the Department had removed her children, she
was still using methamphetamine. Noting that Nexus was just a 30-day program,
Mother also testified that she did not think it was long enough to be effective.
Rather than revoke her probation and send her to state jail, the criminal district
court gave Mother the chance to go to the Concho Valley probation treatment facility.
Mother acknowledged that if she left the facility early, she would go back to jail and
be charged with absconding, which, she said, would lead to a two-to-five-year
sentence.
Mother said that unlike Nexus her current program would last from six months
to two years. At the time of trial, she had already been at Concho Valley for three to
9
four months, and how long she stayed there depended on her behavior; she said that
she was currently at Phase 5 and that “[y]ou discharge from there on Phase 6.” Her
best-case projected discharge date was October 19—more than two months after the
August 2018 termination trial.
In the seven months since January, Mother thought she had made the
necessary changes. She wanted the judge to return her children to her because she was
learning how to control her drug addiction. Mother admitted that since her February
arrest, she had not seen the children.
While she awaited her release from Concho Valley, Mother wanted her children
to be placed with her cousin, Helga. She also agreed with placing the children with
Father’s mother but was unaware that Father’s mother was willing to take only one
child. Mother wanted the children to be with family at least until she had a chance to
(potentially) get out of care in October.
C. Father had a history of drug use and criminal activity.
Father admitted having had an addiction to methamphetamine, but he denied
having one at the time of trial. He explained that he had gone through a six- to nine-
month program and had been successfully discharged with multiple certificates.
Relapsing, he asserted, was not a possibility for him.
Father further admitted that he used drugs every day after the Department had
removed his children until he was “locked up” in late July 2017. But Father
10
maintained that he was capable of sobriety, asserting that he had once remained sober
for four years, from 2011 to 2014.
Father’s criminal history was another potential concern—he had numerous
convictions:
• Four convictions on August 22, 2017 for
o a third-degree felony theft committed in July 2017;
o a third-degree felony possession of methamphetamine committed
in November 2016;
o a third-degree felony evading arrest or detention with a previous
conviction also committed in November 2016; and
o a third-degree felony debit-card abuse committed in September
2016;
• A November 16, 2015 state-jail felony conviction for possession of
methamphetamine committed in May 2015;
• A September 18, 2014 Class A misdemeanor conviction for burglary of a
vehicle committed in August 2014;
• An April 9, 2014 Class B misdemeanor conviction for possession of
marijuana committed in January 2014; and
• An April 7, 2014 state-jail felony conviction for possession of
methamphetamine committed in December 2013.
Father’s July 28, 2017 incarceration had impacted how frequently he saw his
children; he estimated that the last time would have been earlier that same month—
over a year before the termination trial.
Nonetheless, Father spoke enthusiastically about his then-present situation and
future prospects:
11
Actually, right now, I’m . . . in a halfway house. I’ve just been released
from prison. Well, actually, from a program. Right now I’m actually at
a—I’m at the ABODE Treatment center here in White Settlement,
Texas. I—I start next week. I have to do a 10-day orientation before I’m
actually released. Today I actually had . . . a special pass for this court
hearing. So after next week, I actually start my job.
And once the halfway house released him, Father’s support-system plans consisted of
keeping in touch with his sponsor and with the church chaplain. Father hoped that
the halfway house would release him within the next 60 days.
Acknowledging his inability to take his children immediately, Father wanted the
Department to evaluate his mother or Helga as placements.
The Department did conduct a home study on his mother; according to Father,
when the study faulted her home for being too small, she moved into a bigger house.
Father did not know why his mother’s home study was denied but acknowledged
hearing about a problem with his mother’s fiancé’s assault-charge history. Asserting
that the charge against his mother’s fiancé had been dismissed, Father saw no reason
for the Department to deny his mother’s home study on account of the fiancé. Father
also admitted that his mother had a CPS history from Waco in 1992, but he claimed
that she “actually won us back.” He was in foster care “[j]ust for a year.”
D. The caseworker recommended terminating Mother’s and Father’s
parental rights.
1. The caseworker was not persuaded that Father was addiction-free.
Based on her experience, Sonya Dyson, the caseworker, did not think that
Father had addressed the concerns that she identified to him when they spoke during
12
the case. Father’s flatly ruling out relapsing as a possibility ran counter to Dyson’s
training and experience, and she thought that Father’s sobriety, which occurred only
within a highly structured prison environment, was not a true test of his ability to
remain sober once he was released:
Q. [By the Department] So based on your training and experience, does
it concern you when someone who has only had sobriety while they have
been incarcerated or in a structured facility says, [“]There’s no possibility
I will relapse[”]?
A. [Dyson] Yes.
Q. And why, based solely on your training and experience, does that
concern you?
A. Because the true test is when they get out in the real world and they
don’t have somebody looking over their shoulder or telling them what to
do and when to do it, and we have not seen that with him.
Q. Okay. And [Father] and his attorney spent a long time talking about
the extensive work that he did and the detailed relapse prevention that
he planned and all the work that he has done, does any of that mean
anything to you if this man still believes that he doesn’t have a problem
and there’s no possibility he will relapse?
A. No. Because we’re not really concerned as much with what he’s
learned but the application of what he’s learned. And we also know that
relapse is . . . a possible reality when you’re recovering.
Dyson explained that because Father took the position that relapsing was not
possible, that meant that if he did relapse, he had no plan in place. She added, “I don’t
believe he’s being very realistic. He’s not planning for the future.”
13
2. Despite Mother’s progress, citing Mother’s history, the caseworker
thought that Mother was prone to relapsing.
Dyson’s understanding was that Mother and Father were not together, but
Mother had a history of returning to prior partners and relapsing.
But regardless of whether Mother returned to Father, Mother generally had a
history of becoming sober and then relapsing. As an example, Dyson pointed to the
one time that the Department sought to extend the case and moved for a monitored
return because Mother was doing well only to see her relapse. Dyson noted that the
indicators were positive then too: “Well, after [Mother] had completed the program at
Nexus, I mean, she got out. She had done her drug and alcohol assessment. She was
. . . attending Celebrate Recovery. She was working. I mean, she was attending
visitation every week. And then shortly after, she relapsed.” Dyson lamented that the
Department was in the same position in August 2018 that it had been in in January
2018 when Mother had relapsed, and Dyson saw no reason why it would be different
this time.
Dyson also saw no reason for the children to wait for their parents to get their
lives together: “[R]ight now, they’re in a stable environment and they’re happy.”
3. The Department did not approve Helga’s and Father’s mother’s
home studies.
The Department completed a home study on Helga but did not approve it.
Dyson referred to an earlier hearing during which concerns about placing the children
with Helga arose:
14
Based on her testimony last week, there was some concerns with her, I
guess, being honest. And so we couldn’t really get an accurate
assessment whether or not she would be a protective caregiver, and if we
placed the children there, you know, would she know her roles and
responsibilities and would she abide by those.
By “last week,” Dyson was referring to the July 30, 2018 hearing on Mother’s motion
to modify the possessory conservatorship to Helga and Helga’s husband, which the
trial court denied.
The Department conducted a home study on father’s mother, too, but denied
it. When asked why, Dyson answered, “From what I was told, it was denied due to
her having previous CPS history. We didn’t know the extent of that history because
she did not reside in Tarrant County, and so we couldn’t see that information. She
didn’t give details about the case.” The Department was additionally concerned about
Father’s mother’s fiancé, who lived in the home and who had an unresolved assault
charge.
4. The caseworker articulated why termination would be in the
children’s best interest.
Dyson asserted that terminating Mother’s and Father’s parental rights was in
the children’s best interest and remarked, at least as to Father, that if he, Frances, and
Ginette were all in the same room, she doubted that Frances and Ginette would know
who he was.
The “drop-dead dismissal date”—the date by which, for better or worse, the
matter had to be resolved—also appeared to concern Dyson, who said, “I mean,
15
because you have to have a measuring stick. You have to have deadlines. And
unfortunately, we’re near our deadline in this case.” She asserted that the
Department’s mandate was to give children permanency, and at some point, the
Department had to do just that. Dyson argued against waiting any longer: “[A]re the
children just supposed to put their lives on hold while the parents are trying to . . . get
to that [safe and stable] place?” And: “[W]hat happens if they don’t get to that place?”
She added, “[W]e’ve heard [this] before, they don’t really have a relapse plan other
than I just know I’m not [going to] relapse. And that’s just not very realistic. And so in
the future, if [they] do relapse, what is [going to] happen to those children and where
are they [going to] go?”
In contrast, Dyson characterized the foster parents as adoption-motivated, and
she saw nothing suggesting that they could not provide a stable, safe, and loving
environment for the children. “I think,” she said, “this is the first time the children
have had stability.”
But if other family members stepped up, Dyson said that the Department
would consider them.
Standard of Review
A. Generally
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except the child’s right to inherit.
16
Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Consequently, “[w]hen the State seeks to sever permanently the relationship between
a parent and a child, it must first observe fundamentally fair procedures.” In re E.R.,
385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48,
102 S. Ct. 1388, 1391–92 (1982)).
Termination decisions must be supported by clear and convincing evidence. See
Tex. Fam. Code Ann. § 161.001(b), § 161.206(a); In re E.N.C., 384 S.W.3d 796,
802 (Tex. 2012). Due process demands this heightened standard because “[a] parental
rights termination proceeding encumbers a value ‘far more precious than any property
right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at
1397). 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.
For a trial court to terminate a parent–child relationship, the party seeking
termination must establish, by clear and convincing evidence, two things: (1) the
parent’s actions satisfy just one of the many grounds listed in family code
§ 161.001(b)(1), and (2) termination is in the child’s best interest under
§ 161.001(b)(2). Tex. Fam. Code Ann. § 161.001(b)(1), (2); E.N.C., 384 S.W.3d at 803;
In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; that is,
termination may not be based solely on the child’s best interest as determined by the
17
factfinder. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re
C.D.E., 391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).
B. Best Interest
We acknowledge the strong presumption 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). To determine the
child’s best interest, we review the entire record. In re E.C.R., 402 S.W.3d 239,
250 (Tex. 2013). The same evidence used to show a subsection (1) ground may be
probative when determining best interest under subsection (2). Id. at 249; In re C.H.,
89 S.W.3d 17, 28 (Tex. 2002). Nonexclusive factors that the factfinder may use when
determining the child’s best interest include
• 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 parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the child’s best
interest;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the parent’s acts or omissions that may indicate that the existing parent-child
relationship is not a proper one; and
• any excuse for the parent’s acts or omissions.
18
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 of them may not apply to some cases. C.H.,
89 S.W.3d at 27. Furthermore, undisputed evidence of just one of these factors may
suffice in a particular case to support a finding that termination is in the child’s best
interest. See id. On the other hand, in some cases, the presence of scant evidence
relevant to each factor will not support such a finding. Id.
C. Legal Sufficiency
In evaluating the evidence for legal sufficiency in parental-termination cases, we
determine whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction that the Department proved both the particular ground for
termination and that termination is in the child’s best interest. In re J.F.C., 96 S.W.3d
256, 265–66 (Tex. 2002); see In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review
all the evidence in the light most favorable to the finding and judgment, and we
resolve any disputed facts in favor of the finding if a reasonable factfinder could have
done so. J.F.C., 96 S.W.3d at 266. We also must disregard all evidence that a
reasonable factfinder could have disbelieved, in addition to considering undisputed
evidence even if it is contrary to the finding. Id. That is, we consider evidence
favorable to termination if a reasonable factfinder could, and we disregard contrary
evidence unless a reasonable factfinder could not. See id. In doing our job, we cannot
19
weigh witness-credibility issues that depend on the witness’s appearance and
demeanor because that is the factfinder’s province. J.P.B., 180 S.W.3d at 573. And
even when credibility issues appear in the appellate record, we defer to the factfinder’s
determinations so long as they are not unreasonable. Id.
D. Factual Sufficiency
We must perform “an exacting review of the entire record” in determining
whether the evidence is factually sufficient to support terminating a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In reviewing the evidence
for factual sufficiency, we give due deference to the factfinder’s findings and do not
supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
We determine whether, on the entire record, a factfinder could reasonably form a firm
conviction or belief that the parent violated an alleged ground and that termination
was in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); see C.H., 89 S.W.3d
at 25. If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction in the truth of
its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
E. Factual Determinations
In a bench trial, the trial court acts as the factfinder, and we give its factual
findings the same weight as a jury’s verdict. Advance Tire & Wheels, LLC v. Enshikar,
527 S.W.3d 476, 480 (Tex. App.—Houston [1st Dist.] 2017, no pet.); In re A.E.A.,
20
406 S.W.3d 404, 414 (Tex. App.—Fort Worth 2013, no pet.). The trial court evaluates
and resolves any evidentiary inconsistencies. In re S.J.R.-Z, 537 S.W.3d 677, 691 (Tex.
App.—San Antonio 2017, pet. denied); Advance Tire, 527 S.W.3d at 480. It alone
judges witnesses’ credibility. Advance Tire, 527 S.W.3d at 480; In re E.R.C., 496 S.W.3d
270, 284 (Tex. App.—Texarkana 2016, pet. denied). The trial court may accept all,
reject all, or accept only parts—rejecting other parts—of a witness’s testimony, based
on the record before it. Advance Tire, 527 S.W.3d at 480. If the evidence is subject to
reasonable disagreement, we will not reverse. Id.
Discussion
A. We reject Mother’s public-policy argument.
As a component of her sufficiency challenges, Mother argues that public policy
militates against terminating parental rights when safe relative placements are
available, but she cites no authority supporting that proposition. That alone is one
basis for rejecting Mother’s public-policy argument. See In re J.D., No. 02-18-00255-
CV, 2019 WL 150292, at *3 (Tex. App.—Fort Worth Jan. 10, 2019, no pet. h.) (mem.
op.) (“Father cites no direct authority for his public-policy argument that placing a
child with a family member should insulate a parent from losing his parental
rights. . . . We therefore reject Father’s argument.”); In re D.O., 338 S.W.3d 29,
38 (Tex. App.—Eastland 2011, no pet.) (rejecting parent’s assertion that the state
policy was to seek a relative placement over termination and over naming the
Department as managing conservator).
21
Another basis to reject Mother’s argument is that the caselaw refutes it: “The
determination of where a child will be placed is a factor in evaluating the child’s best
interest, but it is not a bar to termination that placement plans are not final or that
placement will be with nonrelatives.” In re C.C., No. 02-04-00206-CV,
2005 WL 1244672, at *7 (Tex. App.—Fort Worth May 26, 2005, no pet.) (mem. op.)
(citing C.H., 89 S.W.3d at 28). We have found no authority suggesting that the
Department has either a statutory or a common-law duty to make a placement with a
relative before a party’s parental rights may be terminated. See In re Y.V., No. 02-12-
00514-CV, 2013 WL 2631431, at *5 (Tex. App.—Fort Worth June 13, 2013, no pet.)
(mem. op.); Frank R. v. Texas Dep’t of Family & Protective Servs., No. 03-09-00436-CV,
2010 WL 1507832, at *3 (Tex. App.—Austin Apr. 13, 2010, no pet.) (mem. op.); In re
K.W., No. 02-09-00041-CV, 2010 WL 144394, at *10 (Tex. App.—Fort Worth Jan.
14, 2010, no pet.) (mem. op.). Even if the children had been placed with relatives,
termination was still possible. See In re E.J., No. 01-17-00548-CV, 2018 WL 285158, at
*6 (Tex. App.—Houston [1st Dist.] Jan. 4, 2018, pet. denied) (mem. op.) (“The
caseworker testified that the Department planned for [the child] to be adopted by his
relative caregivers. The trial court properly could have considered that termination of
the mother’s parental rights would be a necessary precondition to achieving the goal
of a relative adoption.”).
The State has a compelling interest in preserving and promoting a child’s
welfare, and although this interest favors preserving rather than severing familial
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bonds, when clear and convincing proof shows that preserving familial bonds is not
in the child’s best interest, preserving familial bonds is not mandated. Rodarte v. Cox,
828 S.W.2d 65, 79 (Tex. App.—Tyler 1991, writ denied).
B. The trial court did not have to give any significant weight to Mother’s
and Father’s proposed relative placements.
Next, in a related argument, both Mother and Father criticize the terminations
because they both proffered relative placements, but the record shows that the
Department conducted home studies on Father’s mother and on Helga and denied
them both. Mother and Father effectively argue that the Department was wrong to
reject the home studies and that the trial court was wrong to terminate when relative
placements were possible.
Yet nothing in the record suggests that the Department or the trial court acted
arbitrarily. Challenging the Department’s denying Helga’s home study, Mother filed a
motion to modify possessory conservatorship to Helga. Just eight days before trial,
the trial court heard and denied that motion. Something about placing the children
with Helga concerned the Department, and after a contested hearing, the trial court
sided with the Department. And as for Father’s mother, Father did not dispute that
she had a CPS history or that his mother’s fiancé had an assault charge; rather, both
Father and Mother dispute how the Department and the trial court should have
weighed those concerns.
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Another factor when considering relative placements is delay—a factor that
Mother and Father ignore. We note that after the Department removes children, at
the 14-day, full adversarial hearing the rules encourage relative placements:
The court shall place a child removed from the child’s custodial parent
with the child’s noncustodial parent or with a relative of the child if
placement with the noncustodial parent is inappropriate, unless
placement with the noncustodial parent or a relative is not in the best
interest of the child.
Tex. Fam. Code Ann. § 262.201(n). But when this case started, Mother had no one
available, and Father’s mother wanted to take in only Ginette. Because Mother did not
want the children separated and, primarily, because the Department had reservations
about placing the children with Father’s mother, the relative placement with her
proved unworkable from the start, so the children were instead placed into foster
care.
After that, in April 2018—more than a year after the Department had removed
the children—Mother asked to have a home study on Helga performed. And still
later, in May 2018, Father asked for a home study on his mother. Because the children
had been in a stable, adoption-motivated foster home for such a long period of time,
a relative placement could have actually destabilized their lives. Why parents would
prefer a relative placement is self-evident, but determining best interest focuses on the
child, not the parent. In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no
pet.); see In re C.M., No. 02-17-00381-CV, 2018 WL 2123472, at *5 (Tex. App.—Fort
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Worth May 9, 2018, no pet.) (mem. op.) (citing Dupree v. Tex. Dep’t of Protective &
Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ)).
Here, the proposed relative placements were not even necessarily permanent
ones. Both Mother and Father advocated for temporary relative placements until they
themselves had resolved their legal troubles. But stability and permanence are
paramount for children. See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth
2009, pet. denied).
C. Mother’s and Father’s progress was commendable, but the question
remained whether it was durable.
Mother and Father both emphasize their progress. No one disputed at trial that
Mother and Father had been clean for a time—Mother while at Concho Valley and
Father while incarcerated and while at the halfway house. And although both
professed the ability and desire to stay clean after their release, the trial court could
have given their testimony little weight in view of other testimony that relapses were
possible and, more specifically, that both Mother and Father had relapsed in the past.
See Advance Tire, 527 S.W.3d at 480. Although we commend Mother and Father on
their progress and encourage them on that path regardless of this case’s outcome, the
trial court was not required to believe that they would not relapse. See De Llano v.
Moran, 333 S.W.2d 359, 361 (Tex. 1960); In re V.S., No. 02-18-00195-CV,
2018 WL 6219441, at *11 (Tex. App.—Fort Worth Nov. 29, 2018, no pet. h.) (mem.
op.).
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Despite Mother’s and Father’s admirable strides toward turning their lives
around, the trial court could reasonably question their ability to continue to do so.
Moreover, given that the parents’ complained-of conduct continued well after the
removals and given the vulnerability of all three children due to their extreme youth,
the trial court could reasonably fear the consequences to the children if their parents
encountered difficulties, especially when, as here, the parents’ support group of
relatives itself raised safety concerns.
D. The evidence supports terminating Mother’s and Father’s parental
rights.
Overall, clear and convincing evidence supported terminating Mother’s and
Father’s parental rights. Both had a history of using drugs and relapsing. Both had
criminal histories that, even at the time of trial, adversely impacted their ability to
parent. See Holley, 544 S.W.2d at 371–72. Both parents hoped—but could not
guarantee—that they would be free to parent the children two months after the trial.
And although both assured the court that they would not relapse, uncertainty dogged
them.
Conversely, while the case was pending, the children had found a stable
placement that, because the foster parents were adoption-oriented, also offered the
children continuity, safety, and permanence. See id.
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E. We overrule Mother’s and Father’s legal- and factual-sufficiency
challenges.
Viewing the evidence in the light most favorable to the verdict, we hold that a
factfinder could reasonably form a firm belief or conviction that terminating Mother’s
and Father’s parental rights was in the children’s best interests and that the evidence is
therefore legally sufficient to support the best-interest findings. See J.P.B., 180 S.W.3d
at 573; see also Tex. Fam. Code Ann. § 161.001(b)(2).
And based on the entire record and giving due deference to the factfinder’s
findings, we also hold that a factfinder could reasonably form a firm conviction or
belief that terminating Mother’s and Father’s parental rights was in the children’s best
interest and that the evidence is thus also factually sufficient to support the best-
interest findings. See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 28; see also Tex.
Fam. Code Ann. § 161.001(b)(2).
We overrule Mother’s and Father’s legal- and factual-sufficiency challenges.
Conclusion
Having overruled Mother’s and Father’s contentions, we affirm the trial court’s
judgment.
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/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: February 7, 2019
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