In the Interest of J.W., a Child v. the State of Texas ( 2023 )

Opinion filed May 3, 2023
In The
Eleventh Court of Appeals
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No. 11-22-00326-CV
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IN THE INTEREST OF J.W., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 10359-CX
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother and father of J.W. See TEX. FAM. CODE ANN. § 161.001 (West
2022). The father, Appellant, filed a notice of appeal. In a single issue, Appellant
challenges whether the termination of the parent–child relationship was in the best
interest of the child. We affirm.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. FAM. §§ 161.001(b). To terminate one’s parental rights under
Section 161.001, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id. In this case, the trial court found
that the father had committed one of the acts listed in Section 161.001(b)(1)—found
in subsection (O). The trial court also found that termination of the father’s parental
rights would be in the best interest of the child. See id. § 161.001(b)(2).
To determine if the evidence is legally sufficient in a parental termination
case, we review all of the evidence in the light most favorable to the finding and
determine whether a rational trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
To determine if the evidence is factually sufficient, we give due deference to the
finding and determine whether, on the entire record, a factfinder could reasonably
form a firm belief or conviction about the truth of the allegations against the parent.
In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We note that the factfinder—in this
case the trial court—is the sole arbiter of the credibility and demeanor of witnesses.
In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (citing In re J.L., 163 S.W.3d 79, 86–
87 (Tex. 2005)).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (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 acts or
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omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
Evidence Presented at Trial
The Department of Family and Protective Services (the Department) became
involved with J.W. and her family following a report alleging physical neglect and
neglectful supervision of J.W. and her younger brother. At the time of the intake,
J.W. and her brother were living with their maternal grandmother. Kelly Reynolds,
a child safety specialist for the Department, investigated the allegations. Reynolds
conducted a walkthrough of the maternal grandmother’s home, describing it as
“horrendous,” with “things piled up” blocking the door, piles of trash and debris,
stagnant water in the bathroom sink, and a toilet “full of disease” in the bathroom.
Reynolds noted a man also lived in the home, and the man—along with the
grandmother and children—were sleeping on cushions removed from the couch,
some of which were also lying on piles of trash and debris. The home had no stove
or oven, a molding hotplate, and no food. The children’s grandmother was on parole
at that time, and Reynolds noted a concern about her sobriety during the walkthrough
as well.
The children’s mother was contacted and, upon her arrival, explained that she
left the children with her mother because she was living in her car. The mother
admitted to using drugs with the children’s grandmother in that home, later
identifying those drugs as methamphetamine and marihuana. The mother and both
children were tested for drugs. The children tested positive for methamphetamine,
and the mother tested positive for methamphetamine and marihuana. It was
determined that the children had different biological fathers, and each was contacted.
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J.W.’s brother’s biological father arrived quickly following contact by the
Department, and the brother was released into his father’s custody and dismissed
from the case. J.W.’s biological father—Appellant—was contacted and updated
about the circumstances of the case. At that point, the Department’s goal was to
work toward reunification of J.W. and her mother.
The 2INgage case manager, Candice Arevalo, testified that, throughout the
life of the case, Appellant was difficult to contact. Arevalo also noted that Appellant
and the mother did not participate in the family plans of service that were created for
each of them. Appellant refused to sign releases of information required for
substance abuse assessment and did not complete his psychological evaluation. Part
of Appellant’s family plan also included submitting to drug tests. Appellant told
Arevalo that he did not want to submit to drug tests because “he would be positive
and he did not want [the Department] to have any positive drug tests.” Despite this,
Arevalo attempted to schedule those tests with Appellant. Appellant only submitted
to one hair follicle test. That test indicated that Appellant was positive for
methamphetamine, whereas previously he had only disclosed the use of marihuana
and ecstasy. Arevalo indicated to the trial court that Appellant was verbally
aggressive, using curse words and yelling, during some of his virtual visits with J.W.
There were also times that J.W. did not want to speak with Appellant or would end
their calls early. Arevalo also testified that Appellant missed about half of his visits
and showed up late to many of them as well. J.W. and Appellant only conducted
virtual visits, an arrangement that was to be in place until J.W.’s counselor suggested
that in-person visits could begin.
When J.W. was removed from her mother’s custody, she was placed in a home
with a maternal aunt, then with her paternal grandparents, and finally with her
brother’s biological father (hereinafter referred to as J.W.’s “stepfather”), whom
J.W. understood to be her own father, as he was her primary father figure for the
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seven years preceding this case. J.W. expressed a desire to be with her stepfather
and siblings, and Arevalo indicated that J.W. and her stepfather have a loving
connection. Since being placed with her stepfather in California, J.W. is “very
happy.” J.W.’s stepfather wishes to adopt J.W. and make her an official member of
his family, facilitating their strong father–daughter relationship and allowing J.W.
and her brothers to remain close.
Appellant also testified at the hearing. Appellant told the trial court that he
was frustrated with shortened visitation calls with J.W. and that he attempted to reach
out to Arevalo in order to report the shorter visits. Appellant indicated that he had
also attempted to take additional drug tests but was prevented from doing so by the
testing center and by Arevalo. Appellant also maintained that he was not
intentionally absent from J.W.’s life but that he was prevented from having contact
with her by J.W.’s mother. When asked about child support, Appellant claimed that
he “never stopped” paying child support and had been paying it throughout the
“entire case and before.” Appellant expressed to the trial court that he ultimately
just wanted time with his daughter—that he had been deprived of a relationship with
her because of the stepfather—and that all he wanted was to be able to have contact
with her.
Analysis
In Appellant’s sole issue,1 he challenges whether the evidence supports the
trial court’s finding that termination of his parental rights would be in the best
interest of J.W. See FAM. § 161.001(b)(2). There is a “strong presumption” in Texas
that the best interest of a child is served by keeping the child with the parent. In re
R.R., 209 S.W.3d 112, 116 (Tex. 2006). However, the focus for a best interest
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Appellant does not challenge the trial court’s finding under Section 161.001(b)(1)(O), a finding
that was based upon Appellant’s failure to comply with the provisions of a court order establishing the
actions necessary for him to obtain the return of the child.
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determination is on the child, not the parent. Interest of D.A.Z., 583 S.W.3d 676,
681 (Tex. App.—El Paso 2018, no pet.). Giving due regard to that presumption of
keeping a child with the parent, the evidence presented at trial, and the Holley
factors, we hold, as explained below, that the evidence is legally and factually
sufficient to support the trial court’s finding that termination of Appellant’s parental
rights would be in the best interest of J.W. See Holley, 544 S.W.2d at 371–72.
With respect to J.W.’s best interest, the evidence shows that J.W. has
expressed that she wants to be with her stepfather and siblings. There were times
during J.W.’s virtual visits with Appellant that she did not want to talk to him and
times that he would become verbally aggressive and angry. Arevalo testified that
Appellant was difficult to contact throughout the case, admitted to drug use, failed
to participate in his family plan, tested positive for methamphetamine, and refused
to submit to other requests for a drug test. Appellant additionally was not consistent
in attending visits with J.W., missing “about half” of the visits and showing up late.
Viewing the evidence in the light most favorable to the trial court’s best interest
finding, and considering the record as it relates to the desires of the child, the
emotional and physical needs of the child now and in the future, the emotional and
physical danger to the child now and in the future, the parental abilities of Appellant,
Appellant’s lack of compliance with his family plan, and the plans for the child—to
be adopted in the home where her siblings are, we hold that a rational trier of fact
could have formed a firm belief or conviction that its finding was true. See id.; see
also J.P.B., 180 S.W.3d at 573. Thus, the evidence is legally sufficient to support
the order of termination as it relates to the best interest of the child.
Further, based upon our review of the entire record, without viewing the
evidence in the light most favorable to the trial court’s best interest finding, but still
giving due deference to that finding, we hold that the trial court reasonably could
have formed a firm belief or conviction that termination of the parent–child
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relationship between Appellant and J.W. was in the child’s best interest. See Holley,
544 S.W.2d at 371–72; see also C.H., 89 S.W.3d at 25–26. Two witnesses testified
that J.W.’s stepfather was the primary father figure in her life prior to involvement
by the Department and that she had very little contact with Appellant following her
first birthday. Arevalo testified that she did not believe it would be psychologically
or emotionally harmful to J.W. if Appellant’s parental rights were terminated
because her stepfather had been the primary father figure in her life for
approximately seven years.
Appellant did not deny that he tested positive for methamphetamine, nor did
he deny that he refused to complete required paperwork for the family plan. In fact,
Appellant’s testimony does little to dispute much of the testimony from Arevalo and
the stepfather. Instead, Appellant’s testimony indicates that he found the
involvement of the Department to be frustrating and that the stepfather and the
Department were interfering with his visits with J.W., causing them to end early.
While this may dispute the possible characterization that Appellant did not want to
be involved in J.W.’s life, it does little to combat the evidence that he failed to
comply with the service plan, failed to remain free of illegal substances, and failed
to attend all of his scheduled visits with J.W. Furthermore, while evidence that
Appellant loves J.W. and would like to have a relationship with her is certainly
favorable, it cannot ensure a healthy, safe, and stable environment for her, such that
a reasonable factfinder could not have resolved the disputed evidence in favor of the
finding. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Thus, the evidence is
also factually sufficient to support the order of termination as it relates to the best
interest of the child.
Based on the Holley factors and our review of the record, we cannot hold in
this case that the trial court’s finding as to best interest is not supported by clear and
convincing evidence. Accordingly, we overrule Appellant’s sole issue.
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This Court’s Ruling
We affirm the trial court’s order of termination.
W. BRUCE WILLIAMS
JUSTICE
May 3, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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