In the Interest of E.G.P. v. the State of Texas ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-22-00330-CV
____________________
IN THE INTEREST OF E.G.P.
_______________________________________________________ ______________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 21-10-13621-CV
________________________________________________________ _____________
MEMORANDUM OPINION
Mother and the alleged Father appeal an order terminating their parental rights
to their child, Eric.1 The trial court found by clear and convincing evidence, statutory
grounds exist for termination of their parental rights, and termination of Mother’s
and Father’s rights would be in the best interest of Eric. See Tex. Fam. Code. Ann.
§§ 161.001(b)(1)(E), (M), (N), (O), (2), 161.002(b)(1). On appeal, Mother and
Father raise several issues. We affirm in part and reverse and remand in part.
1
To preserve the privacy of the parties, we refer to the Appellants as “Mother”
and “Father” and the child by a pseudonym to protect their identities. See Tex. Fam.
Code Ann. § 109.002(d); Tex. R. App. P. 9.8.
1
I. Background
A. The Affidavit of Removal
The affidavit of removal stated that Mother and Father had other children who
had been removed by the Department in a prior proceeding.2,3 According to the
affidavit, Mother gave birth to Eric in September 2021, and Mother and Father were
hiding the child from the Department. The affidavit stated that the Department had
concerns that Mother was on methamphetamines and that the parents did not have
any baby supplies for Eric. The Department reported that Mother was observed
running after Father’s vehicle with Eric inside of the vehicle. The child’s maternal
grandmother reported that she had spoken to both parents, and they insisted that they
are “clean[.]” The Department contacted both parents and both denied using drugs
despite testing positive for methamphetamine. Mother and Father stated they would
comply with drug testing. The Department alleged that Father refused to let the
Department enter his residence stating, “he wasn’t ready for a home visit.” The
affidavit quotes the guardian ad litem, alleging the parents have not maintained
contact with the guardian ad litem and have not shown up for visitation with their
2
The trial court took judicial notice of its file before commencing with the final
trial.
3
The other children are subject to a separate legal proceeding and are not part
of this appeal.
2
other children. The affidavit concluded by stating the parents have not maintained
contact with the Department or completed drug testing.
B. Trial
The case was tried in a bench trial on September 7, 2022, and Mother and
Father did not appear for trial. Before the commencement of trial, Mother’s attorney
requested a continuance for Mother to complete her family service plan because
Mother’s attorney represented that Mother had recently completed a 30-day inpatient
rehabilitation treatment. The trial court stated the case was already continued from
July 27th to September 7th. In discussing its decision, the trial court noted that
Mother did not appear at hearings in February, May, or at an initial setting for final
trial in July, although the record shows that Mother did appear for a May 26, 2022,
hearing. Mother’s counsel argued that Mother’s absence was due to her working and
being dependent on Father for transportation. The trial court denied the Motion for
Continuance.
1. Alexis McQueen
Alexis McQueen testified she is the current Department caseworker on this
case, but she explained she has only been the caseworker for two months. McQueen
stated that the Department requested Eric be removed from his parents because
“[t]he child was born during the course of the other case and there were concerns
that the parents were using methamphetamines and they had no supplies to care for
3
the child’s needs.” According to McQueen, Mother signed a family service plan that
required her to “complete parenting classes, a psychological evaluation, a drug and
alcohol assessment, random drug screenings, maintain contact with the Department,
and stable income and housing.” Mother completed the parenting class, the drug and
alcohol assessment, and attended a 30-day inpatient treatment recommended after
her drug and alcohol assessment. McQueen testified that she has never received any
information that Mother completed the inpatient program other than an unreadable
intake form, and a discharge form provided by Mother’s attorney which is illegible.
McQueen confirmed Mother also attended weekly follow-up therapy sessions and
weekly drug testing as a result of her inpatient therapy. McQueen has not received
evidence that Mother failed any of those weekly drug tests. Additionally, Mother
has not provided McQueen any proof of her residence.
McQueen testified regarding Mother’s and Father’s communication with the
Department. McQueen believes that the parents are in a relationship and live
together. During the time that McQueen has been on the case, Mother has
communicated via email, only, she has not asked about the welfare of her child, and
she has not visited Eric since May. Father has not maintained contact with the
Department, and the only contact the Department has with Father is through Mother.
McQueen testified she reached out to both parents three times for visitation and the
parents did not attend visitation with Eric.
4
McQueen stated that Father was also ordered per his family service plan to
complete “parenting classes, a drug and alcohol assessment, a psychological
evaluation, random drug screenings, maintain contact with the Department, and
[demonstrate] stable income and housing.” Father completed the parenting class, the
drug and alcohol assessment, and the psychosocial assessment. Father has not
allowed the Department to assess his home. McQueen agreed that it is impossible
for the Department to recommend returning Eric to a home that it has never visited.
McQueen testified that Eric has been in foster care since October 2021 and he
is happy and “doing great.” According to McQueen, the foster parents are meeting
all Eric’s needs and want to adopt him if the parents’ rights are terminated. McQueen
stated that Eric has struggled during visitation with Mother, he has no bond with
Mother, and he cries during the entire visitation until he is reunited with his foster
parents. McQueen testified that for the parents to be able to get their child back, they
needed to work toward coming to more visitations and have negative drug
screenings. Since she has been the caseworker, Mother and Father have not formed
a bond with Eric because they have not attended visitation consistently. She believes
it is in Eric’s best interest to remain in foster care.
2. Rosario Salinas
Rosario Salinas testified she is a supervisor for CASA and was employed by
the Department for two years prior to working for CASA. During her employment
5
with the Department, she was a caseworker on Mother’s and Father’s case. Salinas
stopped working for the Department in July. She testified that the parents had a case
with the Department when Eric was born, resulting in Eric’s removal. According to
Salinas, the Department had concerns about the parents’ substance abuse, lack of
stable housing, and employment.
She confirmed that Mother completed several requirements of her family
service plan, but stated Mother failed to maintain contact with the Department, failed
to maintain stable housing, failed to appear for drug testing, and failed to provide
proof of employment. Salinas testified the last drug test Mother appeared for was a
urinalysis that was negative. She stated Mother’s and Father’s visitation was
“sporadic[.]” Salinas would supervise the visits and described Eric as upset and
crying “a lot.” Salinas also confirmed there were times she would intervene in the
visitation to help Mother. Salinas stated that some months she could not
communicate with the parents, or the parents were not available to visit Eric. Salinas’
last visits with the parents were in May of 2022, despite Salinas offering additional
opportunities for the parents to visit with Eric.
According to Salinas, Father completed several requirements of his family
service plan, but he failed to complete other requirements. Father failed to provide
proof of employment, failed to complete recommendations of his alcohol
assessment, and he failed to provide proof of stable housing. She described visits
6
between Father and Eric as “fine[,]” and noted Father was able to calm Eric down.
But Salinas stated that Father only attended two visits with Eric. Salinas testified
that Father would randomly reach out to her for additional visits, and when she
would arrange the visitation, Father would not respond to any further
communication. Both Mother and Father blamed employment responsibilities or
lack of transportation for visits with Eric.
During the case, Salinas presented each parent with copies of their positive
drug tests. According to Salinas, “[t]hey were surprised, and then [the parents] said,
‘That was the last time we’ve used.’” She took that as an admission of drug use from
the parents.
Salinas stated that Mother’s and Father’s rights to their other children were
terminated. She testified that Eric has been in only one foster home during this entire
case, and his foster parents wish to adopt him. Eric meets with his biological siblings
on a regular basis and keeps a connection with them. She believes it is in Eric’s best
interest for the parents’ rights to be terminated.
3. Michael Quinn
Michael Quinn stated that he is the CASA supervisor and advocate for this
case. He stated that Eric’s siblings were already in the Department’s care when Eric
was removed from his parents. He has visited Eric at his foster home and believes
Eric is doing “very, very well.” Quinn testified he has no concerns about Eric in
7
foster care. According to Quinn, the foster parents are meeting the emotional needs
of Eric and want to adopt him. Eric is “tightly bonded” with his foster parents and
foster siblings, and their home is “his home.”
Quinn testified he has never visited the parents’ home although he made
monthly requests to the parents to facilitate a visit. He was also not aware of the
parents ever requesting visitation with Eric. According to Quinn, Mother attended
about “10 percent” of the visitation made available to her. Quinn stated Eric was not
bonded with the parents and described their visitations with Eric as follows:
[Eric] was inconsolable during the visits. Commonly I would pick him
up -- excuse me -- I would collect him at the back door of the CPS
office, and he cried throughout from the time he left his foster parents
until he was returned to them. [] The father was able to console him
once. The mother never.
Quinn testified that although both parents had completed several requirements
of their service plan, they were missing psychological assessments, they had failed
to demonstrate safe and stable housing, and they had some positive drug tests. Quinn
confirmed the parents’ most recent drug test in April was positive for
methamphetamine. According to Quinn, Mother did not provide CASA with any
documentation regarding her inpatient drug treatment program. Quinn testified that
Father has not maintained consistent contact with CASA, and Father failed to
provide documentation of his employment. Quinn’s biggest concerns for the parents
8
are their drug use and lack of stable housing. He believes the best interest of Eric is
to terminate the parents’ rights and for Eric’s foster family to adopt him.
No other witnesses testified at trial. Drug tests were admitted at trial showing
Mother and Father testing positive for drugs during the course of this case. At the
conclusion of the trial, the trial court found that it had statutory grounds under §§
161.001(b)(1)(E), (M), (N), and (O) to terminate Mother’s rights, and it found it had
grounds to summarily terminate Father’s rights under, 161.002(b)(1). The trial court
also found that termination was in Eric’s best interest. Tex. Fam. Code. Ann. §
161.001(b)(2). Mother and Father appealed.
II. Ineffective Assistance of Counsel
In Mother’s first issue, she challenges the trial court’s decision to name the
Department temporary managing conservator of Eric, and questions whether that
decision was related to ineffective assistance of counsel by Mother’s trial attorney.
Specifically, Mother argues that her trial counsel was ineffective because the
Department could not have met its burden under the Family Code to appoint the
Department temporary managing conservator of Eric. According to Mother, “[she]
and her attorney simply agreed to the appointment of the Department as managing
conservator instead of proceeding with the adversary hearing and requiring the
Department to meet the burden required by Section 262.201—the only provision in
the law at the time for the Department to be appointed as temporary managing
9
conservator.” She argues that the evidence shows that the Department could not have
met its burden under Section 262.201, because Section 262.201(g) requires that the
Court return the child to the parent at the conclusion of the adversary hearing unless
the court finds sufficient evidence to satisfy a person of ordinary prudence and
caution there was danger to the physical health and safety of the child, an urgent
need for protection of the child requiring immediate removal, and reasonable efforts
had been made to return the child home, but the child faced substantial risk if
returned home.
A parent who cannot afford to retain counsel in Texas parental-termination
cases has a right to an appointed attorney who provides effective assistance. In re
D.T., 625 S.W.3d 62, 69-70 (Tex. 2021); In re M.S., 115 S.W.3d 534, 544 (Tex.
2003); see also Tex. Fam. Code Ann. § 107.013(a). Ineffective-assistance-of-
counsel claims in parental-termination cases, as in criminal cases, are governed by
the United States Supreme Court’s two-prong test articulated in Strickland v.
Washington. In re M.S., 115 S.W.3d at 544-45 (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). First, the parent must show that counsel’s performance was
deficient. Id. at 545. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment.
Id. Second, the parent must show that the deficient performance prejudiced the case.
10
Id. This requires showing that counsel’s errors were so serious as to deprive the party
of a fair trial—a trial whose result is reliable. Id.
In examining counsel’s performance under the first prong, “we must take into
account all of the circumstances surrounding the case, and must primarily focus on
whether counsel performed in a ‘reasonably effective’ manner.” Id. (quoting
Strickland, 466 U.S. at 687). Counsel’s performance falls below acceptable levels
only when the “‘representation is so grossly deficient as to render proceedings
fundamentally unfair[.]’” Id. (quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex.
Crim. App. 1983)). We give great deference to counsel’s choices and indulge “‘a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance,’ including the possibility that counsel’s actions are
strategic.” Id. (quoting Strickland, 466 U.S. at 689). The challenged conduct will
constitute ineffective assistance only when “‘the conduct was so outrageous that no
competent attorney would have engaged in it[.]’” Id. (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)).
In conducting the harm analysis under the second prong of Strickland,
reviewing courts must determine whether there is a reasonable probability that, but
for the deficient performance, the result of the proceeding would be different. Id. at
549-50. In this context, “[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Thus, a parent
11
must also show that “counsel’s ‘deficient performance prejudiced the defense[.]’” In
re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (quoting Strickland, 466 U.S. at 687).
An allegation of ineffective assistance of counsel in a termination proceeding
must be firmly founded in the record, and the record must affirmatively demonstrate
the alleged ineffectiveness and the resulting harm. In re L.G.R., 498 S.W.3d 195,
209 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). We may not speculate and
find trial counsel ineffective when the record is silent regarding counsel’s reasons
for his actions. In re Z.M.R., 562 S.W.3d 783, 794 (Tex. App.—Houston [14th Dist.]
2018, no pet.). Mother bears the burden of demonstrating a reasonable probability
that her parental rights would not have been terminated if not for her trial counsel’s
conduct. See In re V.V., 349 S.W.3d 548, 559-61 (Tex. App.—Houston [1st Dist.]
2010, pet. denied).
Mother did not file a Motion for New Trial or other evidence showing the
basis for counsel’s reasoning for not objecting to naming the Department temporary
managing conservator of Eric. Additionally, Mother admits she agreed with counsel
to allow the Department to become Eric’s temporary managing conservator. Because
the record is silent as to the reasons for counsel’s conduct, we will not speculate to
find counsel’s performance deficient. See In re Z.M.R., 562 S.W.3d at 793-95;
Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 623 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). Without evidence about strategic
12
reasons for counsel’s behavior, Mother fails to overcome the strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance.
See In re M.S., 115 S.W.3d at 545; see also Strickland, 466 U.S. at 689.
Even if Mother had met Strickland’s first prong, we conclude she has also
failed to show that, but for counsel’s alleged errors, the result of the proceeding
would have been different. See Strickland, 466 U.S. at 694. As set forth in our
analysis below, the trial court had sufficient evidence in the record to support its
findings under section 161.001(b)(1)(E) and to support the trial court’s finding that
termination of Mother’s parental rights was in the child’s best interest. We overrule
Mother’s first issue.
III. Motion for Continuance
In her second issue, Mother complains that the trial court erred in denying her
motion for continuance. This case was originally set for final trial on July 27, 2022.
Per the trial court judge, at the July 27, 2022 hearing, the case was reset to September
7, 2022, to allow Mother to complete services from her family service plan. At the
September 7th trial, Mother sought a second continuance of her case. In an oral
motion for continuance, Mother’s attorney told the trial court that Mother had
transportation issues that day, had a new caseworker on her case which had caused
trouble communicating with the Department, and that Mother had recently
completed a 30-day inpatient program, and as a result, needs “a little more time to
13
get her services done[.]” The trial court noted that Mother did not appear at the initial
permanency hearing in February 2022, did not appear at the initial final trial setting
in July 2022, and did not appear at the final trial set for September 2022. The trial
court denied the motion, stating it did not have legal grounds to extend the case past
“statutory deadlines.”
We review a trial court’s denial of a motion for continuance in a termination
of parental rights case for an abuse of discretion. In re E.L.T., 93 S.W.3d 372, 374
(Tex. App.—Houston [14th Dist.] 2002, no pet.); In re H.R., 87 S.W.3d 691, 701
(Tex. App.—San Antonio 2002, no pet.). A trial court shall not grant a motion for
continuance “except for sufficient cause supported by affidavit, or by consent of the
parties, or by operation of law.” Tex. R. Civ. P. 251; In re H.R., 87 S.W.3d at 701.
A. Additional Time to Complete Service Plan
In her brief, Mother brings our attention to her request for additional time to
complete her service plan. Mother sought a continuance on the ground that she
needed additional time to complete her service plan. It is not sufficient cause to
simply assert that a parent needs more time to complete a family service plan when
the parent has had sufficient opportunity to perform the service plan but failed to do
so. In re J.D.L.R., No. 04–11–00774–CV, 2012 WL 1364988, at *1 (Tex. App.—
San Antonio Apr.18, 2012, no pet.) (mem. op.); see also Tex. R. Civ. P. 251; In re
H.R., 87 S.W.3d at 701. Appellant cites her 30-day inpatient rehabilitation treatment,
14
arguing it necessitated allowing Mother more time to complete her service plan.
Mother had almost a year to complete her service plan. The Department developed
a family service plan for Mother in October 2021 and final trial commenced in
September 2022. The evidence in the record shows that although Mother completed
portions of her family service plan, she failed to complete all of the requirements of
her plan. The evidence in the record establishes that even after the court granted her
initial continuance, she failed to take any actions in furtherance of her service plan,
and she failed to appear for numerous hearings and she failed to appear at trial.
We cannot say the trial court erred in denying Mother another continuance.
Mother failed to demonstrate sufficient cause for the trial court to grant her motion.
We overrule Mother’s second issue.
IV. Statutory Grounds for Termination
Next, Mother and Father challenge the statutory grounds for termination,
arguing the evidence is legally and factually insufficient to support termination
under section 161.002(b)(1) of the Texas Family Code and that termination is in
Eric’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1); (2).
A. Section E
Because the trial court terminated Mother’s parental rights under section
161.001(b)(1)(E), as to Mother, we begin our review with section E. See Tex. Fam.
Code Ann. § 161.001(b)(1)(E). Under a legal sufficiency review, we review all the
15
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.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could, and we disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. Id. If no reasonable factfinder could
form a firm belief or conviction that the matter that must be proven is true, the
evidence is legally insufficient. Id.Under a factual sufficiency review, we must determine whether the evidence
is such that a factfinder could reasonably form a firm belief or conviction about the
truth of the Department’s allegations. Id. We give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its ruling. Id. 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, the evidence is factually insufficient. Id.The decision to terminate parental rights must be supported by clear and
convincing evidence, i.e., “the measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations
16
sought to be established.” Tex. Fam. Code Ann. § 101.007; In re J.L., 163 S.W.3d
79, 84 (Tex. 2005) (citation omitted). The movant must show that the parent
committed one or more predicate acts or omissions and that termination is in the
child’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); see also In re
J.L., 163 S.W.3d at 84. We will affirm a judgment if any one of the grounds is
supported by legally and factually sufficient evidence and the best interest finding is
also supported by legally and factually sufficient evidence. In re C.A.C., Jr., No. 09-
10-00477-CV, 2011 WL 1744139, at *1 (Tex. App.—Beaumont May 5, 2011, no
pet.) (mem. op.). However, when, as here, a parent challenges a trial court’s findings
under section 161.001(b)(1)(D) or (E), we must review the sufficiency of those
grounds as a matter of due process and due course of law. See In re N.G., 577 S.W.3d
230, 235 (Tex. 2019).
For purposes of subsection (E), endangerment means to expose the child to
loss or injury or to jeopardize a child’s emotional or physical health. Id. at 234; In
re M.L.L., 573 S.W.3d 353, 363 (Tex. App.—El Paso 2019, no pet.). Termination
under subsection (E) must be based on more than a single act or omission and
requires a voluntary, deliberate, and conscious course of conduct by the parent. In
re M.L.L., 573 S.W.3d at 363-64. A parent’s conduct that subjects a child’s life to
instability and uncertainty endangers the emotional or physical well-being of a child.
Id. at 363. Endangerment is not limited to actions directed toward the child and
17
includes the parent’s actions before the child’s birth and while the parent had custody
of older children, including evidence of drug usage. In re J.O.A., 283 S.W.3d at 345.
Courts may consider whether a parent’s drug use continues after the child is
removed from the parent’s care, as such conduct shows a voluntary, deliberate, and
conscious course of conduct that endangers a child’s well-being. See In re J.S., 584
S.W.3d 622, 635 (Tex. App.—Houston [1st Dist.] 2019, no pet.); see also In re M.E.-
M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied). The trial
court may infer from a parent’s refusal to submit to drug testing that they are using
drugs. See In re K.C.B., 280 S.W.3d 888, 895 (Tex. App.—Amarillo 2009, pet.
denied). “A parent’s efforts to improve or enhance parenting skills are relevant in
determining whether a parent’s conduct results in endangerment under subsection
E.” In re S.R., 452 S.W.3d 351, 362 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied) (citation omitted).
1. Mother
For Mother, the trial court heard evidence that when Eric was removed,
Mother was already under investigation with the Department for her other children.
The Department had concerns about Mother’s drug use, and throughout this case,
Mother had positive drug tests for both methamphetamine and marijuana. Mother
also did not regularly visit Eric, and it was noted that Mother was unable to console
him during her limited visitations. In addition, her last visitation was four months
18
before trial, resulting in witness testimony that she did not have a bond with Eric.
There was also evidence that, although she completed portions of her family service
plan, she did not follow up with her psychological evaluation, maintain regular
contact with the Department, provide proof of consistent employment, and did not
provide information that she had a safe and stable home.
We conclude Mother committed the predicate acts enumerated in section
161.001(b)(1)(E). See Tex. Fam. Code Ann. § 161.001(b)(1)(E); In re C.A.C., Jr.,
2011 WL 1744139, at *1. Having concluded that the evidence was legally and
factually sufficient to support the trial court’s findings as to subsection
161.001(b)(1)(E), we need not address Mother’s challenges regarding the trial
court’s findings under sections 161.001(b)(1)(M), (N), and (O). See In re N.G., 577
S.W.3d at 235; In re C.A.C., Jr., 2011 WL 1744139, at *5; see also Tex. R. App. P.
47.1 We overrule Mother’s third, fourth, and fifth issues on appeal.
2. Father
In his first issue, Father challenges the trial court’s order terminating his
parental rights to Eric based on section 161.002(b)(1). See Tex. Fam. Code Ann. §
161.002(b)(1). Texas Family Code Section 161.002 is titled “Termination of the
Rights of an Alleged Biological Father,” and subpart (b)(1) provides in relevant part:
(b) The rights of an alleged father may be terminated if:
(1) after being served with citation, he does not respond by timely
filing an admission of paternity or a counterclaim for paternity
under Chapter 160.
19
Subsection 161.002(b)(1) allows a trial court to summarily terminate the rights of an
alleged biological father who does not respond by timely filing an admission of
paternity or a counterclaim for paternity under Chapter 160. In re A.D., No. 04-02-
00310- CV, 2002 WL 31829510, at *1 (Tex. App.—San Antonio Dec.18, 2002, no
pet.). However, if the alleged father does file an admission of paternity or a
counterclaim for paternity, then the State must “meet the high burden of proof found
in section 161.001” and establish one of the grounds outlined therein to terminate
the rights of the alleged father. Phillips v. Tex. Dep’t of Protective & Regulatory
Servs., 25 S.W.3d 348, 357 (Tex. App.—Austin 2000, no pet.). If the alleged father
does not file such an admission or counterclaim, then subsection (b) permits the trial
court to summarily terminate his parental rights without TDPRS having to meet the
high burden of proof found in section 161.001. Id. If a trial court erroneously
terminates an alleged father's parental rights after he sufficiently admits paternity,
reversal and remand for a new trial to require TDFPS to meet its burden of proof
under Section 161.001 is the appropriate remedy. See In re E.O., 595 S.W.3d 858,
865 (Tex. App.—El Paso 2020, no pet.) (citing In re C.M.C., 273 S.W.3d 862, 883
(Tex. App.—Houston [14th Dist.] 2008, no pet.) on reh'g)); Phillips, 25 S.W.3d at
357.
Father admits that he did not file a formal acknowledgment of paternity or
counter petition for paternity. If an alleged biological father does not file a document
20
with the court, he may nevertheless be found to have admitted paternity by appearing
at trial, asserting that he was the child’s father, and asking the trial court not to
terminate his parental rights. See Toliver v. Tex. Dep’t of Family & Protective Servs.,
217 S.W.3d 85, 105 (Tex. App.—Houston [1st Dist.] 2006, no pet). In support of his
argument, Father directs our attention to testimony by the caseworker and CASA
that Father was the parent of Eric, that Father acknowledged at a family group
conference that he had a son, worked services to get his son back, and that Father
would visit Eric.
Although he appeared with his court-appointed attorney at the temporary
orders hearing, Father did not appear at trial. His counsel argued at trial that Father’s
parental rights should not be terminated on the grounds asserted and that termination
of Father’s parental rights would not be in the child’s best interest. In its final,
appealable order, the trial court found by clear and convincing evidence that Father,
after being served with citation in the suit “did not respond [to citation in this suit]
by timely filing an admission of paternity or by filing a counterclaim for paternity
or for voluntary paternity to be adjudicated under chapter 160 of the Texas Family
Code before the final hearing in this suit[.]” See Tex. Fam. Code Ann. §
161.002(b)(2).
As stated above, Father acknowledged he did not file a written statement of
paternity. However, Father’s attorney signed an Agreed Temporary Order on behalf
21
of Father which contained the following: “The Court finds that [FATHER] is a
parent who has responded in opposition to the suit affecting the parent-child
relationship;…[.]” This portion of the temporary order constitutes an admission in
open court reduced to writing and signed by the trial judge. See In re M.M., No. 02-
22-00279-CV, 2023 WL 2178403, *5 (Tex. App.—Fort Worth Feb. 23, 2023, no
pet.) (mem. op.) (citations omitted) (“A stipulation is ‘an agreement, admission,
or concession made in a judicial proceeding by the parties or their attorneys
respecting some matter incident thereto.’ A stipulation is not enforceable unless it is
in writing, signed and filed with papers as part of the record, or unless it is made in
open court and entered of record.”). The temporary order states that Father was
present with his attorney and the parties agreed to the temporary order. The manner
and means of admitting paternity is not restricted to the filing of an Acknowledgment
of Paternity or a pleading claiming paternity, but may be established in various ways.
See generally In re G.A.G., No. 04-07-00243-CV, 2007 WL 3355463, at *1-2 (Tex.
App.—San Antonio Nov. 14, 2007, no pet.) (mem. op.) (Answer, which stated the
respondent was the father, and which was signed by attorney, was an admission of
paternity); In re K.W., 138 S.W.3d 420, 429-30 (Tex. App.—Fort Worth 2004, pet.
denied) (letters sent by alleged father to Department and court stating he is the father
and did not want to relinquish his rights were admissions under section 161.002(b));
Estes v. Dallas Cty. Child Welfare Unit of Tex. Dep’t of Human Servs., 773 S.W.2d
22800, 801-02 (Tex. App.—Dallas 1989, writ denied) (answer filed by the presumed
father was sufficient to constitute an admission of paternity); see also Holy Cross
Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (answer to a
summary judgment contained judicial admission) (citing Houston First Am. Sav. v.
Musick, 650 W.S.2d 764, 767 (Tex. 1983) (“Assertions of fact, not plead in the
alternative, in the live pleadings of a party are regarded as formal judicial
admissions.”).
Father did not appear at trial, but he did make admissions in the temporary
orders which sufficiently triggered his right to require the Department to prove one
of the statutory grounds for termination. See In re J.L.A., No. 04-13-00857-CV, 2014
WL 1831097, *2 (Tex. App.—San Antonio May 7, 2014, no pet.) (mem. op.)
(Noting that “by [Father] appearing at trial and admitting that he is the child’s father,
an alleged father triggers his right to require the Department to prove one of the
grounds for termination under section 161.001(1) and that termination is in the best
interest of the child.”); In re R.B., No. 14-17-00238-CV, 2017 WL 3567905, *9-10
(Tex. App.—Houston [14th Dist.] Aug. 17, 2017, no pet.) (mem. op.); In re K.R.L.,
No. 01-14-00213-CV, 2014 WL 3843520, *10 (Tex. App.—Houston [1st Dist.]
Aug. 5, 2014, no pet.) (mem. op.) (holding no representation of paternity when
“Appellant did not file any document in the trial court, did not send a copy of [a]
letter to the trial court, and did not testify at trial.”). As we have explained, in this
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case Father stipulated to the Agreed Temporary Order, which contained a finding
that he was the parent of the child named in the suit (Eric), that he was opposed to
the Department’s pleading of which he had been served (seeking, among other
things, termination of his parental rights), and which Agreed Temporary Order was
signed by Father’s attorney. We sustain Father’s first issue and remand the case to
the trial court for a new trial as to Father.
B. Best Interest
In Mother’s seventh issue and Father’s second issue, they challenge the
sufficiency of the evidence to support the trial court’s best interest finding. Mother
argues the evidence is legally and factually insufficient to support the trial court’s
determination that termination was in Eric’s best interest. Trial courts have wide
latitude in determining the child’s best interest. See Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982). There is a strong presumption that the child’s best
interest is served by keeping him with his parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006) (citation omitted); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—
Houston [14th Dist.] 2012, no pet.); see also Tex. Fam. Code Ann. § 153.131(b).
Prompt and permanent placement of the child in a safe environment is also presumed
to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a).
The Family Code outlines factors to be considered in determining whether a
parent is willing and able to provide a safe environment for the child. See id. §
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263.307(b). Several other nonexclusive factors may be considered in a best interest
analysis, including: (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 to promote the best interest of
the child; (6) the plans for the child by these individuals or by the agency seeking
custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or
omissions that may indicate that the existing parent-child relationship is not a proper
one; and (9) any excuse for the parent’s acts or omissions. See Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976); see also In re A.C., 560 S.W.3d 624, 631 (Tex.
2018) (characterizing the Holley factors as “nonexclusive”). No particular Holley
factor is controlling, and evidence of one factor may be enough to support a finding
that termination is in the child’s best interest. See M.C. v. Tex. Dep’t of Family &
Protective Servs., 300 S.W.3d 305, 311 (Tex. App.—El Paso 2009, pet. denied)
(“Undisputed evidence of just one factor may be sufficient to support a finding that
termination is in the best interest of a child.”) (citations omitted); see also In re C.H.,
89 S.W.3d 17, 27 (Tex. 2002).
We may consider circumstantial evidence, subjective factors, and the totality
of the evidence in our best interest analysis. See In re N.R.T., 338 S.W.3d 667, 677
(Tex. App.—Amarillo 2011, no pet.). A parent’s past conduct is relevant to
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determining the parent’s present and future ability to care for a child. See In re C.H.,
89 S.W.3d at 28. Evidence supporting the statutory grounds for termination may
also be used to support a finding that the best interest of the child warrants
termination of the parent-child relationship. See id.
As we have explained, the evidence shows that Eric was removed from
Mother’s custody due to an open investigation with her other children, concerns
about drug use, and the stability of her home. Evidence admitted at trial showed
Mother had multiple positive drug tests for marijuana and methamphetamines.
Witnesses testified that while Mother completed portions of her family service plan,
she failed to maintain contact with the Department, maintain stable housing, appear
for drug testing, and provide proof of employment. Mother failed to attend consistent
visitation with Eric; her last visitation was four months before trial, and testimony
demonstrated that she did not have a bond with Eric during visitation. Both the
caseworker and CASA testified that Eric would be crying during visitation and
Mother would not be able to calm him. CASA described visitation with Eric and his
parents as “tragic[.]” Both Department caseworkers and CASA believed it was in
Eric’s best interest to terminate Mother’s parent-child relationship.
Finally, testimony demonstrated that Eric was happy in his foster home, he
was considered to be a part of the foster parent’s family, and his foster parents were
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meeting all his needs. The foster family wanted to adopt Eric if Mother’s and
Father’s parental rights were terminated.
Considering the evidence related to best interest, deferring to the trial court’s
determinations on witness credibility, the resolution of conflicts in the evidence, and
the weight given to the testimony, we conclude that the statutory and Holley factors
weigh in favor of the trial court’s finding that termination of Mother’s parental rights
is in Eric’s best interest. See Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a),
(b); Holley, 544 S.W.2d at 371-72. The trial court could have reasonably formed a
firm belief or conviction that termination of Mother’s parental rights was in Eric’s
best interest. See In re C.H., 89 S.W.3d at 28. We overrule this issue. We do not
reach Father’s second issue.
V. Permanent Managing Conservatorship
In Mother’s final issue, she challenges the trial court’s determination to
appoint the Department as Eric’s permanent managing conservator. 4 Mother argues
that evidence at trial is insufficient to support termination of her parental rights and
4
Father did not challenge the court’s order appointing the Department the
permanent managing conservator of Eric. See In re N.T., 474 S.W.3d 465, 480 (Tex.
App.—Dallas 2015, no pet.) (“In cases where a trial court’s termination of the
parent-child relationship is reversed, a parent is required to independently challenge
a trial court’s finding under section 153.131(a) to obtain reversal of the
conservatorship appointment. See In re J.A.J., 243 S.W.3d 611, 616-17 (Tex. 2007);
In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
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therefore the trial court erred when it appointed the Department permanent managing
conservator of Eric.
Conservatorship determinations are subject to review for abuse of discretion.
In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). We will reverse the trial court’s
appointment of a managing conservator only if we determine it was arbitrary or
unreasonable. Id.; In re N.T., 474 S.W.3d 465, 479 (Tex. App.—Dallas 2015, no
pet.). The Family Code creates a rebuttable presumption that a parent will be named
the child’s managing conservator unless that court finds that such appointment
would not be in his best interest “because the appointment would significantly impair
the child’s physical health or emotional development[.]” Tex. Fam. Code Ann. §
153.131(a). This finding was made by the trial court in this case. As discussed
above, we affirm the trial court’s order terminating Mother’s parental rights.
When the parents’ rights have been terminated, Family Code section
161.207(a) governs the appointment of a managing conservator. See id. §
161.207(a); In re N.T., 474 S.W.3d at 480-81. Section 161.207(a) provides, “If the
court terminates the parent-child relationship with respect to both parents or to the
only living parent, the court shall appoint a suitable, competent adult, the
Department of Family and Protective Services, or a licensed child-placing agency as
managing conservator of the child.” Tex. Fam. Code Ann. § 161.207(a). However,
we have concluded that only Mother’s rights were terminated. We cannot conclude,
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as to Mother, that the trial court abused its discretion by appointing the Department
as the child’s managing conservator. See In re J.A.J., 243 S.W.3d at 616; In re N.T.,
474 S.W.3d at 480-81. We overrule Mother’s last issue.
VI. Conclusion
Having overruled all of Mother’s issues on appeal, the order terminating
Mother’s parental rights to Eric is affirmed. Having found error in the trial court’s
reliance upon section 161.002(b)(2), and no finding as to one of the statutory
grounds for termination, the evidence is insufficient to support the order terminating
Father’s rights. We reverse and remand the case for further proceedings consistent
with this opinion.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
_________________________
JAY WRIGHT
Justice
Submitted on February 1, 2023
Opinion Delivered April 13, 2023
Before Golemon, C.J., Johnson and Wright, JJ.
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