In the Interest of Z.G., a Child v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00038-CV
___________________________
IN THE INTEREST OF Z.G., A CHILD
On Appeal from the 231st District Court
Tarrant County, Texas
Trial Court No. 231-706172-21
Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
In this appeal, Appellant F.S.M. (Father) and Appellant C.G. (Mother) appeal
the trial court’s order terminating their respective parental rights to their child Z.G.
(Zoey).1 The trial court found that the Department of Family and Protective Services
(the Department) had proved three conduct-based grounds for termination against
Father and four conduct-based grounds against Mother and that termination of their
respective parental rights was in Zoey’s best interest. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E), (O), (R), (2). In his sole issue on appeal, Father contends that
the evidence is legally and factually insufficient to support the trial court’s best-interest
finding. Mother’s court-appointed attorney filed an Anders brief, stating that he did
not find any legally nonfrivolous grounds constituting error. Because legally and
factually sufficient evidence supports the trial court’s best-interest finding with respect
to the termination of Father’s parental rights and because Mother’s appeal is frivolous,
we will affirm the trial court’s termination order.
II. BACKGROUND
A. Zoey’s Birth and Removal
Zoey was born in September 2021. Mother tested positive for
methamphetamines throughout her pregnancy, and Mother also tested positive for
To protect her identity, we use aliases to refer to the child and her brother. See
1
Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
2
methamphetamines when she delivered Zoey at the hospital. Zoey’s meconium tested
positive for methamphetamines and marijuana.
Nidra Jones, an investigator for the Department, received a referral from the
hospital regarding Zoey on the date of Zoey’s birth. Mother admitted to Jones that
she had used methamphetamines during her pregnancy, although Mother denied
methamphetamine use during the last five months of the pregnancy. Father told
Jones that he did not know what methamphetamines were, although he acknowledged
that Mother used methamphetamines. Father admitted that he had previously tested
positive for methamphetamines, stating that those test results had been positive due
to his being around Mother. Jones also learned that Zoey had a brother, R.S.G.
(Reid), who had tested positive for methamphetamines following his July 2020 birth.2
Three days after Zoey’s birth, she was removed from Father’s and Mother’s care and
placed into a foster home where Reid was staying.
B. The Events Following Zoey’s Removal
1. Father’s Service Plan and Positive Drug Tests
Reba Shaffer, a permanency specialist employed by Our Community Our Kids
(OCOK),3 testified that, following removal, the Department put a service plan in
Father’s and Mother’s respective parental rights to Reid were terminated in
2
August 2021.
3
“OCOK is a private provider of community-based care that contracts with the
Department to provide foster care case management, kinship, and family reunification
services in parts of the state, including Tarrant County.” In re T.D., No. 02-22-00215-
3
place for Father. Father was asked to complete parenting classes, to participate in
individual counseling, and to submit to random drug testing. Shaffer testified that
Father completed the parenting classes and the individual counseling. As to the
random drug testing, Father’s hair tested positive for methamphetamines in April,
May, June, September, October, and November 2022. Shaffer requested that Father
submit to drug testing in December 2022, but Father did not submit to the test.
At trial, Father denied ever having used methamphetamines, but he had no
explanation for his positive test results. In the past, Father had told the Department
that his positive results were due to being around Mother. Mother testified, however,
that Father was never present when she used methamphetamines, and Father testified
that he had never seen Mother use drugs. Moreover, Mother stated that she did not
use drugs in the family’s home, explaining that she went outside to use drugs.
As to Father’s drug use, Mother told Shaffer that she was concerned that
Father was using methamphetamines, although Mother indicated that Father was not
using methamphetamines in her presence. At trial, Mother stated that she had never
seen Father use drugs, although she also said that Father occasionally behaved in the
manner of someone who was using drugs.
CV, 2022 WL 11483054, at *3 n.9 (Tex. App.—Fort Worth Oct. 20, 2022, pet.
denied) (mem. op.).
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2. Mother’s Service Plan and Positive Drug Tests
Shaffer testified that, following removal, the Department put a service plan in
place for Mother. Mother was asked to complete a drug assessment, parenting
classes, Narcotics Anonymous classes, and individual counseling. She was also asked
to participate in random drug testing and to engage in inpatient drug treatment.
Shaffer testified that Mother did not complete any of her services. Mother also tested
positive for methamphetamines in October and November 2021, as well as January,
February, March, April, July, and September 2022. Mother tested positive for
marijuana in February, March, April, July, and September 2022.4
At trial, Mother admitted to having drug problems and stated that she had last
used methamphetamine “a week or two” before trial. Father testified that he had
never discussed Mother’s methamphetamine addiction with her, noting, “[I]t’s hard to
understand because she’s an addict and I am not, so I just don’t understand it.”
3. Zoey’s Placement with the Foster Family
Following removal, Zoey was initially placed in a foster home with Reid.
Thereafter, Zoey and Reid were sent together to a different foster family that adopted
Reid. Apart from Zoey and Reid, that foster family consists of a foster father, a foster
mother, and two foster siblings (the Foster Family). Shaffer testified that Zoey and
Reid were “extremely bonded,” noting that the two were “very friendly with one
Shaffer requested that Mother submit to drug testing in November and
4
December 2022, but Mother did not submit to those tests.
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another” and that Reid shared well with Zoey and showed concern for her. Shaffer
also testified that the Foster Family had been able to meet Zoey’s emotional, physical,
developmental, educational, and medical needs, and Shaffer anticipated that they
would continue to meet those needs in the future. The Department’s permanency
plan was for Zoey to remain with the Foster Family and to be ultimately adopted by
the Foster Family.
C. Procedural Background
In its petition, the Department sought termination of Father’s parental rights as
to Zoey based on, among other things, the predicate termination grounds set forth in
Subsections (D), (E), and (O) of Section 161.001(b)(1) of the Family Code. See Tex.
Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). The Department sought termination of
Mother’s parental rights as to Zoey based on, among other things, the predicate
termination grounds set forth in Subsections (D), (E), (O), and (R). See id.§ 161.001(b)(1)(D), (E), (O), (R).
Following a bench trial, the trial court signed an order finding that Father had
engaged in conduct under Subsections (D), (E), and (O); that Mother had engaged in
conduct under Subsections (D), (E), (O), and (R); and that termination of their
respective parental rights was in Zoey’s best interest. Father and Mother appeal from
that termination order.
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III. DISCUSSION
A. Father’s Appeal
In his sole issue, Father challenges the trial court’s finding that termination of
his parental rights was in Zoey’s best interest.5
1. Standard of Review
For a trial court to terminate a parent–child relationship, the party seeking
termination must establish, by clear and convincing evidence, that (1) the parent’s
actions satisfy just one of the many predicate grounds listed in Family Code
Section 161.001(b)(1), and (2) termination is in the child’s best interest under
Section 161.001(b)(2).6 Tex. Fam. Code Ann. § 161.001(b); In re E.N.C., 384 S.W.3d
796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). 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.
5
Father challenges the sufficiency of the evidence to support a best-interest
finding under both Section 161.001(b)(2) and Section 161.003(a)(5), but the trial court
did not make a finding based on Section 161.003(a)(5) and did not terminate Father’s
parental rights under that subsection. See Tex. Fam. Code Ann. § 161.003(a)(5). We
will thus limit our analysis to the trial court’s best-interest finding under Section
161.001(b)(2). See In re P.L., No. 02-22-00463-CV, 2023 WL 2703805, at *4 n.7 (Tex.
App.—Fort Worth Mar. 30, 2023, no pet. h.) (mem. op.) (“Mother also challenges the
sufficiency to support a best-interest finding under Section 161.003(a)(5), but the trial
court did not make a finding based on that subsection and did not terminate Mother’s
parental rights under Section 161.003.”).
Father does not challenge the finding of predicate grounds for termination.
6
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To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged
findings—here the best-interest finding—to determine whether a reasonable
factfinder could form a firm belief or conviction that the finding is true. In re J.P.B.,
180 S.W.3d 570, 573 (Tex. 2005); see Tex. Fam. Code Ann. § 161.001(b)(2). We
assume that the factfinder settled any evidentiary conflicts in favor of its finding if a
reasonable factfinder could have done so. J.P.B., 180 S.W.3d at 573. We disregard all
evidence that a reasonable factfinder could have disbelieved, and we consider
undisputed evidence even if it is contrary to the finding. Id. That is, we consider
evidence favorable to the finding if a reasonable factfinder could, and we disregard
contrary evidence unless a reasonable factfinder could not. See id. The factfinder is
the sole judge of the witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d
336, 346 (Tex. 2009).
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the factfinder’s findings and do not supplant them with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we review the whole record to
decide whether a factfinder could reasonably form a firm conviction or belief that the
termination of Father’s parental rights to Zoey is in Zoey’s best interest. See Tex.
Fam. Code Ann. § 161.001(b)(2). If the factfinder reasonably could form such a firm
8
conviction or belief, then the evidence is factually sufficient. In re C.H., 89 S.W.3d 17,
18–19 (Tex. 2002).
2. Applicable Law
Although we generally presume 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), the best-interest
analysis is child-centered, focusing on the child’s well-being, safety, and development,
In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). Evidence that is probative of the
predicate grounds under Section 161.001(b)(1) may also be probative of best interest
under Section 161.001(b)(2). In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013); C.H.,
89 S.W.3d at 28. We also consider the evidence in light of the following nonexclusive
factors that the factfinder may apply in determining the child’s best interest:
• 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
• the parent’s excuse, if any, for the acts or omissions.
9
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249;
E.N.C., 384 S.W.3d at 807. These factors do not form an exhaustive list, and some
factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore,
undisputed evidence of just one factor may suffice in a particular case to support a
finding that termination is in the child’s best interest. Id. On the other hand, the
presence of paltry evidence relevant to each factor will not support such a finding.
Id.; In re C.G., No. 02-20-00087-CV, 2020 WL 4518590, at *7 (Tex. App.—Fort
Worth Aug. 6, 2020, pet. denied) (mem. op.); In re J.B., No. 02-18-00034-CV, 2018
WL 3289612, at *4 (Tex. App.—Fort Worth July 5, 2018, no pet.) (mem. op.).
3. Best-Interest Analysis
As to Zoey’s desires, the record reflects that Zoey was one year old at the time
of the termination trial and did not testify. “When children are too young to express
their desires, the factfinder may consider whether the children have bonded with the
foster family, are well-cared for by them, and have spent minimal time with a parent.”
In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
The record reflects that Zoey is in a foster home with Reid—her biological brother—
and that Zoey and Reid have a very close bond. Moreover, Shaffer testified that the
Foster Family was meeting Zoey’s emotional, physical, developmental, educational,
and medical needs. In contrast to the close bond between Zoey and Reid, Shaffer
testified that Zoey did not appear to have a strong bond with Father. The record
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further reflects that Zoey was removed from Father’s care three days after her birth
and that she had not spent a significant amount of time with Father.7 The trial court
was entitled to find that this factor weighed in favor of terminating Father’s parental
rights to Zoey.
As to Zoey’s emotional and physical needs now and in the future and the
emotional and physical danger to her now and in the future, the record reflects that
Father tested positive for methamphetamines repeatedly during the case and that he
also failed to submit to requested drug testing. Such evidence of past drug use and a
refusal to submit to drug testing supports a finding that the parent has endangered the
child’s emotional and physical needs and posed a danger to the child. See In re L.T.,
No. 02-22-00197-CV, 2022 WL 15053329, at *7 (Tex. App.—Fort Worth Oct. 27,
2022, no pet.) (mem. op.) (conducting best-interest analysis and noting that mother’s
pattern of drug use and refusal to submit to drug testing supported termination); In re
M.H., No. 02-22-00048-CV, 2022 WL 2840266, at *2–3, 6 (Tex. App.—Fort Worth
July 21, 2022, no pet.) (mem. op.) (similar). And as to future drug use, a factfinder
may measure a parent’s future conduct by his past conduct. In re A.H., No. 02-21-
00402-CV, 2022 WL 1682422, at *11 (Tex. App.—Fort Worth May 26, 2022, no pet.)
(mem. op.); In re R.H., No. 02-19-00273-CV, 2019 WL 6767804, at *5 (Tex. App.—
Fort Worth Dec. 12, 2019, pet. denied) (mem. op.).
7
Shaffer stated that, at the time of trial, Father was allowed biweekly, ninety-
minute visits with Zoey.
11
Moreover, the record reflects that Father minimizes the drug use of the family
unit. Father stated that he did not believe that Zoey and Reid had tested positive for
methamphetamines at their respective births, and Father admitted that he had never
discussed Mother’s methamphetamine addiction with her despite knowing of the
addiction. And while he denied his own drug use, Father offered no explanation for
his positive test results. See In re A.J.W., No. 04-19-00346-CV, 2019 WL 6333468, at
*6 (Tex. App.—San Antonio Nov. 27, 2019, no pet.) (mem. op.) (“The court could
have rationally concluded that [mother] is unable to protect her children or to provide
them a safe and stable environment because she minimizes her drug problem.”); In re
A.E., No. 05-14-01340-CV, 2015 WL 1184179, at *7 (Tex. App.—Dallas Mar. 16,
2015, pet. denied) (mem. op.) (conducting best-interest analysis and noting that
mother’s “choice to minimize her past drug use” was a factor of “particular
significance”). The trial court was entitled to find that these factors weighed in favor
of terminating Father’s parental rights to Zoey.
As to the plans for Zoey, Shaffer testified that the Department’s plan was for
Zoey to ultimately be adopted by the Foster Family, where she would remain with
Reid. Father indicated that he wanted Zoey to be placed with his brother and mother.
Father acknowledged that if Zoey was placed with his brother and mother, Zoey
would be separated from Reid. Shaffer testified that removing Zoey from Reid would
be “traumatizing to her and him.” The trial court was entitled to find that this factor
weighed in favor of terminating Father’s parental rights to Zoey. See In re A.O., No.
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02-21-00376-CV, 2022 WL 1257384, at *14 (Tex. App.—Fort Worth Apr. 28, 2022,
pet. denied) (mem. op.) (“Generally, it is in a child’s best interest to keep siblings
together whenever possible.”); In re A.J.T., No. 02-12-00029-CV, 2012 WL 3499418,
at *4–5 (Tex. App.—Fort Worth Aug. 16, 2012, no pet.) (per curiam) (mem. op.)
(affirming best-interest finding and noting that siblings were placed together).
As to Father’s acts or omissions that may indicate that the existing parent–child
relationship is not a proper one and Father’s excuse, if any, for such acts or omissions,
the record reflects that Father repeatedly tested positive for methamphetamines
during the pendency of this case. Father, however, did not offer any explanation for
the failed drug tests. The trial court was entitled to find that these factors weighed in
favor of terminating Father’s parental rights to Zoey. See In re D.R.V., No. 08-22-
00238-CV, 2023 WL 2544577, at *8 (Tex. App.—El Paso Mar. 16, 2023, no pet.)
(mem. op.) (holding that mother’s failure to offer any explanation for noncompliance
with random drug testing was factor trial court could have considered in favor of
termination as part of best-interest determination); In re A.S.G., No. 04-17-00297-CV,
2017 WL 4801667, at *6 (Tex. App—San Antonio Oct. 25, 2017, no pet.) (mem. op.)
(considering evidence that “mother never offered any explanation for her drug use
during pregnancy” as factor to consider in best-interest analysis).
4. Best-Interest Conclusion
Viewing the evidence in the light most favorable to the trial court’s best-
interest finding, we hold that a factfinder could have reasonably formed a firm
13
conviction or belief that termination of the parent–child relationship between Father
and Zoey was in Zoey’s best interest, and we therefore hold that the evidence is
legally sufficient to support the trial court’s best-interest finding. See Tex. Fam. Code
Ann. § 161.001(b)(2); J.P.B., 180 S.W.3d at 573. Based on our exacting review of the
entire record and giving due deference to the factfinder’s findings, we likewise
conclude that the evidence is factually sufficient to support the trial court’s best-
interest finding. See C.H., 89 S.W.3d at 18–19. Accordingly, we overrule Father’s sole
issue.
B. Mother’s Appeal
Mother’s appointed appellate counsel has filed a brief asserting that he “has
been unable to identify any legally non-frivolous grounds for appeal” and that
Mother’s appeal is therefore frivolous. See Anders v. California, 386 U.S. 738, 744–45,
87 S. Ct. 1396, 1400 (1967); see also In re K.M., 98 S.W.3d 774, 776–77 (Tex. App.—
Fort Worth 2003, order) (holding that Anders procedures apply in parental-rights
termination cases), disp. on merits, No. 2-01-349-CV, 2003 WL 2006583, at *2–3 (Tex.
App.—Fort Worth May 1, 2003, no pet.) (per curiam) (mem. op.). Counsel’s brief
meets the Anders requirements by presenting a professional evaluation of the record
and demonstrating why there are no arguable grounds to advance on appeal. We
provided Mother the opportunity to obtain a copy of the appellate record and to file a
pro se response, but she did not do so.
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When an Anders brief is filed, we must independently examine the appellate
record to determine if any arguable grounds for appeal exist. In re C.J., No. 02-18-
00219-CV, 2018 WL 4496240, at *1 (Tex. App.—Fort Worth Sept. 20, 2018, no pet.)
(mem. op.); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We also
consider the Anders brief itself and, if filed, any pro se response. In re K.M., No. 02-
18-00073-CV, 2018 WL 3288591, at *10 (Tex. App.—Fort Worth July 5, 2018, pet.
denied) (mem. op.); see In re Schulman, 252 S.W.3d 403, 408–09 (Tex. Crim. App. 2008)
(orig. proceeding).
We have carefully reviewed appointed appellate counsel’s Anders brief and the
appellate record. Having found no reversible error, we agree with counsel that this
appeal is without merit. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App.
2005); In re D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied).
Therefore, we affirm the trial court’s order terminating the parent–child relationship
between Mother and Zoey.
Mother’s counsel remains appointed in this appeal through proceedings in the
supreme court unless otherwise relieved from his duties for good cause in accordance
with Family Code Section 107.016. See Tex. Fam. Code Ann. § 107.016; In re P.M.,
520 S.W.3d 24, 27–28 (Tex. 2016) (order).
IV. CONCLUSION
Having overruled Father’s sole issue and having held that nothing in the record
might arguably support Mother’s appeal, we affirm the trial court’s termination order.
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/s/ Dana Womack
Dana Womack
Justice
Delivered: May 18, 2023
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