in the Interest of B.K. and G.L., Children ( 2018 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00037-CV
IN THE INTEREST OF B.K. AND G.L., CHILDREN
On Appeal from the 71st District Court
Harrison County, Texas
Trial Court No. 17-0128
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
The Texas Department of Family and Protective Services (the Department) filed a petition
to terminate Mother’s parental rights to her children, three-year-old B.K. and one-year-old G.L.
After a final hearing, the trial court terminated Mother’s parental rights to both children after
finding that: (1) she knowingly placed or allowed the children to remain in conditions or
surroundings which endangered their physical or emotional well-being; (2) she engaged in conduct
or knowingly placed the children with persons who engaged in conduct which endangered their
physical or emotional well-being; (3) she constructively abandoned the children, who had been in
the permanent or temporary managing conservatorship of the Department for not less than six
months, (4) she failed to comply with the provisions of a court order that specifically established
the actions necessary for her to obtain the return of the children, who had been in the permanent
or temporary managing conservatorship of the Department for not less than nine months as a result
of their removal from her under Chapter 262 of the Texas Family Code for abuse or neglect; (5)
she used a controlled substance, as defined by Chapter 481, Texas Health and Safety Code, in a
manner that endangered the children’s health or safety, and either failed to complete a court-
ordered substance abuse treatment program or continued to abuse a controlled substance after
completion of such a program; and (6) termination of her parental rights was in the children’s best
interests. See TEX. FAM. CODE ANN. §161.001(b)(1)(D), (E), (N), (O), (P), (2) (West Supp. 2017).
On appeal, Mother argues that the evidence is legally and factually insufficient to support
the trial court’s findings that statutory grounds for terminating her parental rights existed and that
termination of her parental rights was in the children’s best interests. We conclude that sufficient
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evidence supports both the trial court’s finding under Ground O of Section 161.001(b)(1) and the
best-interests finding. Consequently, we affirm the trial court’s judgment.
I. Sufficient Evidence Supports the Trial Court’s Ground O Finding
“Only one predicate finding under Section 161.001[b](1) is necessary to support a
judgment of termination when there is also a finding that termination is in the child’s best interest.”
In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003)); In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011,
no pet.)); see In re N.R., 101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003, no pet.). Here, we
determine whether the evidence is legally and factually sufficient to support the trial court’s
Ground O finding.
A. Standard of Review
“The natural right existing between parents and their children is of constitutional
dimensions.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a fundamental
right to make decisions concerning “the care, custody, and control of their children.” Troxel v.
Granville, 530 U.S. 57, 65 (2000). “Because the termination of parental rights implicates
fundamental interests, a higher standard of proof—clear and convincing evidence—is required at
trial.” In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). This Court is therefore required to “engage
in an exacting review of the entire record to determine if the evidence is . . . sufficient to support
the termination of parental rights.” Id. at 500. “[I]nvoluntary termination statutes are strictly
construed in favor of the parent.” In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007,
pet. denied) (quoting Holick, 685 S.W.2d at 20).
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In order to terminate parental rights, the trial court must find, by clear and convincing
evidence, that the parent has engaged in at least one statutory ground for termination and that
termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017);
In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012). “Clear and convincing evidence” is that “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.” TEX. FAM. CODE ANN. § 101.007 (West 2014); see In
re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our review
of the evidence.
In our review of factual sufficiency, we give due consideration to evidence the trial court
could have reasonably found to be clear and convincing. In re H.R.M., 209 S.W.3d 105, 109 (Tex.
2006) (per curiam). We consider only that evidence the fact-finder reasonably could have found
to be clear and convincing and determine “whether the evidence is such that a fact[-]finder could
reasonably form a firm belief or conviction about the truth of the . . . allegations.” Id. (quoting
In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002). “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, then the evidence is factually insufficient.” J.F.C., 96 S.W.3d at 266.
“[I]n making this determination,” we must undertake “an exacting review of the entire record with
a healthy regard for the constitutional interests at stake.” A.B., 437 S.W.3d at 503 (quoting C.H.,
89 S.W.3d at 26).
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Despite the profound constitutional interests at stake in a proceeding to terminate parental
rights, “the rights of natural parents are not absolute; protection of the child is paramount.” A.V.,
113 S.W.3d at 361 (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)); see In re M.S., 115
S.W.3d 534, 547 (Tex. 2003). “A child’s emotional and physical interests must not be sacrificed
merely to preserve parental rights.” In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana
2015, no pet.) (citing C.H., 89 S.W.3d at 26).
B. Evidence at the Final Hearing
At the start of the May 16, 2018, final hearing, the trial court took notice of its own file,
including the Department’s February 21, 2017, petition, which recited that it was filed under
Chapter 262 of the Texas Family Code after the Department received reports that Mother was
allegedly using methamphetamine while caring for B.K. and G.L. The trial court also noticed
(1) its March 23, 2017, order, entered under Chapter 262, requiring Mother to comply “with each
requirement set out in the Department’s original, or any amended, service plan during the
pendency of [the] suit,”1 (2) its June 13, 2017, order adopting the Department’s family service plan
as an order of the court after finding that Mother had reviewed it, and (3) its December 8, 2017,
order (a) finding that Mother had not demonstrated compliance with the family service plan and
(b) reiterating that the Department’s family service plan was an order of the trial court that required
Mother’s compliance.
1
The March 23, 2017, order was entered after a hearing in accordance with Section 262.205 of the Texas Family Code.
See Act of May 26, 1999, 76th Leg., R.S., ch. 1150, § 22, 1999 Tex. Gen. Laws 4043, 4048, repealed by Act of
May 28, 2017, 85th Leg., R.S., ch. 910, § 15, 2017 Tex. Sess. Law Serv. 3712, 3718 (West).
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At the hearing, Mallory Waugh-Brown, the Department’s supervisor, testified that B.K.
and G.L. were removed from Mother’s care after both Mother and G.L. tested positive for
methamphetamine. After being appointed temporary managing conservator on March 23, 2017,
the Department created a family service plan setting forth the actions necessary for Mother to
regain conservatorship of the children. Among other things, the court-ordered family service plan,
which Mother signed on April 20, 2017, required her to refrain from criminal activity, gain and
maintain legal employment, complete a parenting class, maintain contact with the caseworker,
complete a psychological evaluation and drug assessment, follow recommendations to complete
drug counseling, and comply with random drug testing. Waugh-Brown testified that Mother did
not complete any portion of the court-ordered family service plan, even though she had explained
to Mother its requirements and the consequences of noncompliance.
Specifically, Waugh-Brown testified that Mother admitted to using methamphetamine
several times during the pendency of the case. According to Waugh-Brown, Mother had not
gained legal employment, failed to attend the parenting classes that were scheduled for her, failed
to maintain regular contact with her caseworker, did not complete a psychological evaluation, and
refused to meet with a substance-abuse counselor after being referred to him for treatment.
Waugh-Brown also stated that Mother attended an initial appointment for admittance into a drug
rehabilitation program, but relapsed before she was admitted, that she missed ten drug tests
spanning from February 2017 until January 2018, and that “[a]ll drug tests that she did take were
positive for methamphetamine.” Waugh-Brown, who personally witnessed Mother under the
influence of methamphetamine, testified that Mother was intoxicated during a May 31, 2017,
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planned visitation with her children, and that she “missed the majority of her visits” with them.
Waugh-Brown informed the trial court that, in late January 2018, Mother had been arrested on
charges of murder and tampering with evidence and had remained in jail since her arrest.
C. Analysis
Under Ground O, the Department was required to prove that Mother
failed to comply with the provisions of a court order that specifically established
the actions necessary for the parent to obtain the return of the child who has been
in the permanent or temporary managing conservatorship of the Department of
Family and Protective Services for not less than nine months as a result of the
child’s removal from the parent under Chapter 262 for the abuse or neglect of the
child.
TEX. FAM. CODE ANN. § 161.001(b)(1)(O).
Here, the appellate record established that B.K. and G.L. were removed from Mother under
Chapter 262 for abuse or neglect and that they were in the temporary managing conservatorship
of the Department for well over a year before the final hearing.2 Further, the trial court ordered
Mother to comply with each and every requirement of the Department’s family service plan, which
it had adopted as its own order. Neither the trial court’s orders nor Ground O of Section
161.001(b)(1) ‘“make[s] a provision for excuses’ for the parent’s failure to comply” with the
family service plan. In re B.H.R., 535 S.W.3d 114, 122 (Tex. App.—Texarkana 2017, no pet.)
(quoting In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.)).
2
“If a parent has neglected, sexually abused, or otherwise endangered her child’s physical health or safety, such that
initial and continued removal are appropriate, the child has been ‘remov[ed] from the parent under Chapter 262 for
the abuse or neglect of the child.’” In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013) (quoting TEX. FAM. CODE ANN.
§ 161.001(b)(1)(O)).
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We find that Waugh-Brown’s testimony established, by clear and convincing evidence,
that, prior to her January 2018 incarceration, Mother had ample opportunity, but failed, to comply
with virtually every provision of the court-ordered family service plan. Accordingly, we find the
evidence both legally and factually sufficient to support the trial court’s Ground O finding. We
overrule Mother’s first point of error.
II. Sufficient Evidence Supports the Trial Court’s Best-Interests Finding
In her last point of error, Mother argues that the evidence was legally and factually
insufficient to support the trial court’s finding that termination of her parental rights was in the
children’s best interests.
“There is a strong presumption that keeping a child with a parent is in the child’s best
interest.” In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus
Christi Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)
(per curiam)). “Termination ‘can never be justified without the most solid and substantial
reasons.’” In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting
Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).
In determining the best interests of the child, courts consider the following Holley factors:
(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 individuals seeking custody, (5) the programs
available to assist these individuals, (6) the plans for the child by these individuals,
(7) the stability of the home, (8) the acts or omissions of the parent that may indicate
the existing parent-child relationship is not a proper one, and (9) any excuse for the
acts or omissions of the parent.
8
Id. at 818–19 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see E.N.C., 384
S.W.3d at 807; see also TEX. FAM. CODE ANN. § 263.307(b) (West Supp. 2017). Further, we may
consider evidence used to support the grounds for termination of parental rights in the best-interest
analysis. C.H., 89 S.W.3d at 28.
B.K. and G.L. were both too young to express their desires, leading us to conclude that the
first Holley factor is neutral.
Next, Mother’s drug use had ultimately led to the removal of B.K. and G.L. from her care.
Mother had exposed G.L. to methamphetamine, causing the child to test positive for the drug.
According to Waugh-Brown, Mother continued to use methamphetamine during the pendency of
the case, arrived intoxicated to a visitation with her children in May 2017, and missed many other
visits with them. Waugh-Brown testified that Mother’s drug use endangered B.K. and G.L.
Waugh-Brown also testified that Mother had no legal employment, no stable home, and had not
completed parenting classes. She added that the children had not seen a doctor regularly while in
Mother’s care and were behind on their scheduled immunizations.
Because “[e]vidence of past misconduct or neglect can be used to measure a parent’s future
conduct,” the trial court was free to find that Mother would likely continue to abuse drugs and
neglect her children. O.R.F., 417 S.W.3d at 39 (quoting In re A.M., 385 S.W.3d 74, 82 (Tex.
App.—Waco 2012, pet. denied)). Further, “[a] parent who lacks stability, income, and a home is
unable to provide for a child’s emotional and physical needs.” In re J.T.G., No. 14-10-00972-CV,
2012 WL 171012, at *17 (Tex. App.—Houston [14th Dist.] Jan. 19, 2012, pet. denied) (mem. op.).
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Based on the evidence in this case, we find that the second, third, fourth, and eighth Holley factors
weigh in favor of termination of Mother’s parental rights.
As to the fifth and ninth Holley factors, the Department had programs available to assist
Mother, but she did not take advantage of any of those programs. Mother fled from a substance
abuse counselor, relapsed after an initial intake appointment for a drug rehabilitation program,
failed to complete parenting classes she was enrolled in, did not undertake the required
psychological evaluation, and missed many supervised visits with her children. Although Waugh-
Brown suggested that Mother did not have transportation of her own, there was no testimony
suggesting that Mother was unable to attend the services and appointments arranged by the
Department for that reason. The trial court noted that, although she was incarcerated in late
January 2018, she had ample time before her arrest to complete the family service plan. We find
that the fifth and ninth Holley factors weigh in favor of termination of parental rights.
As for the sixth and seventh factors, there was no evidence presented suggesting that
Mother had any plan for the children or place for them to live. She was then incarcerated on
charges of murder and tampering with evidence. In contrast, the Department signed a mediated
settlement agreement with the respective fathers of each child that provided for each father to be
the sole managing conservator of his child.3 Waugh-Brown testified that it was in the children’s
best interests for Mother’s parental rights to be terminated and for each child’s father to be
3
The mediated settlement agreement contained in the clerk’s record was not signed by Mother or her attorney, and
there is no evidence of her assent to it.
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appointed as sole managing conservator. We find that the sixth and seventh Holley factors weigh
in favor of termination of parental rights.
Considering the Holley factors, and in light of all of the evidence, the trial court could have
reasonably formed a firm belief or conviction that termination of Mother’s parental rights was in
the best interests of B.K. and G.L. We conclude that the evidence was both legally and factually
sufficient to support the trial court’s best-interest finding.
III. Conclusion
We affirm the trial court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: August 15, 2018
Date Decided: August 16, 2018
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