In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00052-CV
IN THE INTEREST OF P.D. AND C.D., CHILDREN
On Appeal from the 402nd Judicial District Court
Wood County, Texas
Trial Court No. 2013-378
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
After many years’ use of methamphetamine and the resulting chaotic home life, Amy 1
lost her parental rights to her young children, P.D. and C.D., in a bench trial in Wood County. 2
On appeal, Amy challenges the legal and factual sufficiency of the evidence to support selected
elements of the trial court’s order of termination under grounds set out in subsections (D), (E),
(I), (O), and (P) of Section 161.001(1) of the Texas Family Code. 3 Amy does not contest the
trial court’s finding that termination is in the best interests of the children, but attacks only the
trial court’s findings of the above grounds for termination. 4 We affirm the judgment of the trial
court because the evidence is sufficient to support the order of termination under Section
161.001(1)(O). 5
Parental rights may be terminated if the parent has
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
1
We will refer to appellant as “Amy” and the children as “P.D.” and “C.D.” See TEX. R. APP. P. 9.8.
2
The trial court also terminated the parental rights of each of the fathers of P.D. and C.D., who have not appealed.
3
The trial court’s order of termination found that there was clear and convincing evidence to support termination of
Amy’s parental rights under those five grounds and that termination was in the best interest of the children. See
TEX. FAM. CODE ANN. § 161.001(1) (D), (E), (I), (O) and (P); § 161.001(2) (West 2014). The trial court also
entered findings of facts and conclusions of law finding the same.
4
Under grounds (D), (E), and (P), all requiring proof, in some way, that the children were endangered, Amy argues
that there is insufficient proof of endangerment. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E), & (P). Ground (I)
involves “contumaciously” refusing to submit to a court order, and Amy asserts that the evidence does not
demonstrate that her limited failure to comply was contumacious, that is, stubborn or willful. See TEX. FAM. CODE
ANN. § 161.001(1)(I). Because we find sufficient evidence to establish ground (O), we do not reach these
arguments. See TEX. FAM. CODE ANN. § 161.001(1)(O).
5
When there is a finding that the termination is in the best interest of the child, only one statutory ground under
Section 161.001(1) is necessary to support a judgment of termination. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003);
In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied).
2
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(1)(O).
On appeal, Amy does not contest that she failed to comply with the provisions of the
court order establishing the actions she needed to take to obtain the return of the children. 6 Amy
challenges only the legal and factual sufficiency of the evidence supporting the finding that the
children had been removed “as a result of abuse or neglect.” 7 Therefore, we consider the
evidence relating to the original removal of the children to determine whether it is sufficient to
support the trial court’s finding that they were removed as a result of abuse or neglect. See, e.g.,
In re E.C.R., 402 S.W.3d 239 (Tex. 2013).
Texas courts have historically shown great respect for the biological bond between parent
and child, recognizing that the ‘“natural right which exists between parents and their children is
one of constitutional dimensions.’” In re J.W.T., 872 S.W.2d 189, 194–95 (Tex. 1994) (quoting
Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)). They also recognize, however, that “the
rights of natural parents are not absolute; protection of the child is paramount. . . . The rights of
parenthood are accorded only to those fit to accept the accompanying responsibilities.” A.V., 113
S.W.3d at 361. The child’s emotional and physical interests will not be sacrificed merely to
preserve parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
6
The record reveals that Amy failed to comply with at least three of the required actions, including continuing with
counseling and following all recommendations of the counselor, submitting to all drug tests requested by the
Department or ordered by the court, and maintaining a stable home and income.
7
Amy’s briefing on this issue is sparse, at best. In the interest of justice and since the State has fully briefed this
point, we will address it.
3
Terminating parental rights under the Texas Family Code requires proof by clear and
convincing evidence. TEX. FAM. CODE ANN. § 161.001(1) (West 2014). Clear and convincing
evidence is “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); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). When the legal sufficiency of evidence is
challenged, we “look at all the 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.” J.F.C., 96 S.W.3d at 266. In a bench trial, “we assume that the trial court resolved
disputed facts in favor of its finding if a reasonable fact-finder could do so, but disregard all
evidence that a reasonable fact-finder could have disbelieved or found to have been incredible.”
In re K.W., 335 S.W.3d 767, 770 (Tex. App.—Texarkana 2011, no pet.) (citing In re J.O.A., 283
S.W.3d 336, 344 (Tex. 2009)).
In reviewing for factual sufficiency, we also consider disputed and conflicting evidence.
If we find, after reviewing the entire record, “the disputed evidence that a reasonable fact-finder
could not have credited in favor of the finding is so significant that a fact-finder could not
reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.”
In re J.O.A., 283 S.W.3d at 344.
We turn to the underlying facts in this record.
The petition for temporary managing conservatorship was supported by an affidavit
recounting the facts requiring the removal of P.D. and C.D. In addition, Teresa Huffine, the
Child Protective Services caseworker who performed the initial investigation testified at the final
4
hearing regarding the events leading up to the removal of the children. The evidence shows
Amy and her children came to the attention of CPS in May 2013, when it received a report of a
possible failure to seek medical treatment concerning C.D. At that time, Amy and her children
were staying with her grandmother. Huffine investigated the report; interviewed Amy, her
grandmother, and her mother; and observed the children. Huffine also observed that the home
was clean and had working utilities and ample food and toys for the children.
During the initial investigation, Amy admitted using methamphetamine and alcohol and
signed a substance abuse acknowledgement. A safety plan was instituted with Amy’s
grandmother as the supervised contact. Amy also agreed that she would refrain from any further
use of illegal substances. During the two months before removal of the children, several
incidents of domestic violence occurred. In one instance, Amy’s mother was accused of criminal
trespass by the Wood County Sheriff’s Department. In another visit to the home, Huffine was
accompanied by a deputy, and Amy and her grandmother were hostile toward each other, with
the grandmother stating she would protect herself with a gun or knife if necessary. Two days
before removal of the children, Amy’s grandmother said she was planning on evicting Amy.
The grandmother claimed there were two more people living at the house that were not supposed
to be there and that there had been another instance of domestic dispute, again mentioning the
use of a gun to protect herself if necessary. Two days before the removal of the children,
Huffine interviewed Amy’s cousin, who was frequently at the home. The cousin advised that
Amy and her grandmother argue constantly and that “it can be very serious at times.” P.D., who
was four years old, and C.D., who was four and one-half months, were in the home during these
5
arguments. Huffine testified that, although these arguments were non-physical, they still
exposed the children to domestic violence and posed a threat to their emotional well-being and
cognitive development. Huffine was also concerned that the escalating arguments might turn
physical and that they posed a danger to the children. At the final hearing, Amy testified that her
grandmother verbally abused her in front of her children. Amy denied that she had mood swings
or anger issues at that time, but admitted they had arguments.
On three of the home visits, there were persons present in the home that Huffine
recognized from other, unrelated, CPS cases. All were known to her to use drugs and have
criminal histories. She continued to counsel Amy on making better decisions on whom she
allowed in the home, but to no avail. On her last visit to the house, Huffine learned that another
woman had moved into the home. This woman had moved from another home that had a history
of drug use and domestic violence. Earlier that day, Amy and her grandmother had another
altercation in front of the children, and her grandmother called CPS. On that visit, she also
learned from Amy’s cousin that there was a regular stream of visits by men to see Amy in her
room.
During the course of the investigation, Amy admitted “recreational” use of alcohol and
methamphetamine that had continued for about five years, although she stated she used it away
from home. In the two months before removal, Amy admitted that she continued to use
methamphetamine and that she was involved with people with criminal histories who also used
drugs. Although Huffine did not believe Amy was using drugs inside the home, she testified
that, in her experience, the effects of methamphetamine use may last several days and affect
6
parenting by clouding judgment. Amy denied that her drug use affected her parenting skills or
posed any danger to her children. She also did not recognize that the presence of drug users with
criminal histories posed any kind of threat or risk of harm to her children. However, at the final
hearing she acknowledged that she now sees that her drug use may have had an effect on how
she took care of her children. She also agreed that, when she was using methamphetamine, her
judgment was impaired as far as decisions she made regarding her children.
Bonnie McBride, a licensed clinical social worker and family therapist who counseled
Amy, testified that Amy’s drug use and home environment endangered the children’s emotional
and physical well-being. She agreed that Amy’s drug use, the instability of her home life, and
the domestic violence endangered the physical health and emotional well-being of the children.
Dawn McClain, a licensed professional counselor, testified that Amy’s methamphetamine use
and the domestic violence in the home would place the children in danger and harm them
emotionally.
After two months, Amy still would not adhere to the safety plan, and she would not
acknowledge that her decisions and conduct might expose the children to danger. On July 9,
2013, another investigator, Laura Cranford, visited with both Amy and her grandmother in the
home. During that visit, Amy admitted she had used methamphetamine within the previous two
days. Cranford also learned that Amy’s grandmother was not complying with the safety plan by
allowing Amy unsupervised contact with the children. The visit ended with Amy and her
grandmother getting into a heated argument. On July 10, 2013, the Department of Protective and
Family Services (the Department) determined that the increasing domestic violence, Amy’s
7
continued drug use, and the failure of Amy and her grandmother to adhere to the safety plan by
allowing people who are known illegal drug users with criminal histories to visit and reside in
the home posed a risk of harm to the children. So, the Department removed the children from
the home pursuant to the emergency provisions of the Texas Family Code. See TEX. FAM. CODE
ANN. § 262.104 (West 2014). The same day the Department filed a petition seeking temporary
managing conservatorship of the children. The trial court entered emergency temporary orders
giving the Department temporary managing conservatorship and setting a full adversary hearing
July 22, 2013.
On July 22, 2013, a full adversary hearing was held, and Amy appeared in person and
through her attorney. After the hearing, the trial court entered temporary orders in which it
found, inter alia, (1) that there was a danger to the physical health or safety of the children
caused by an act or failure to act of the person entitled to possession, (2) that it was contrary to
the welfare of the children to remain in the home, and (3) that there was a substantial risk of
continuing danger if the children remained in the home. The trial court also entered orders that
established specific actions that Amy needed to take to obtain the return of the children. These
actions included (1) submitting to a psychological or psychosocial evaluation and following all
recommendations of the evaluation; (2) attending counseling sessions until the counselor
determined no further sessions were necessary; (3) attending domestic violence counseling
sessions until the counselor determined no further sessions were necessary; (4) attending and
successfully completing parenting classes; (5) submitting to an alcohol and drug assessment and
following all recommendations; (6) submitting to drug tests as requested by the Department or
8
ordered by the court; (7) obtaining and maintaining a stable home and income; and
(8) complying with each requirement of the Department’s service plan. The Department’s
service plan included all of the court-ordered services and also required her to maintain a stable
home and employment for six months, complete an anger management course, and participate in
Narcotics Anonymous and Alcoholics Anonymous meetings at least three times a week and
provide documentation of attendance to the Department.
As Amy correctly asserts, Section 161.001(1)(O) requires that the removal of the children
under Chapter 262 of the Texas Family Code be for “abuse or neglect.” TEX. FAM. CODE ANN.
§ 161.001(1)(O). The Texas Supreme Court has recently concluded that, under Chapter 262 and
this subsection, abuse or neglect “necessarily includes the risk or threats of the environment in
which the child is placed.” E.C.R., 402 S.W.3d at 248. As the court recognized, the definitions
of abuse and neglect under Chapter 261 “inform” the meaning of abuse and neglect under
Chapter 262. Id. Under Chapter 261, “abuse” includes “the current use by a person of a
controlled substance . . . in a manner or to the extent that the use results in physical, mental or
emotional injury to a child.” TEX. FAM. CODE ANN. § 261.001(1)(I) (West 2014). “Neglect”
includes “placing a child in or failing to remove a child from a situation that a reasonable person
would realize requires judgment or actions beyond the child’s level of maturity, physical
condition, or mental abilities and that results in . . . a substantial risk of immediate harm to the
child.” TEX. FAM. CODE ANN. § 261.001(4)(B)(i) (West 2014). Further, Section 262.104 allows
the emergency removal of a child when “on information furnished by another that has been
corroborated by personal knowledge of facts and all of which taken together would lead a person
9
of ordinary prudence and caution to believe that there is an immediate danger to the physical
health or safety of the child.” TEX. FAM. CODE ANN. § 262.104(a)(2).
In this case, there is abundant evidence that Amy’s continued substance abuse and her
allowing other drug users and persons with criminal histories into the home created an
environment that placed the children at risk of emotional and physical harm. Amy admitted as
much at the final hearing. In addition, as set forth in the supporting affidavit and the testimony
of Huffine, the increasing level of altercations between Amy and her grandmother, to the extent
her grandmother expressed on more than one occasion the need to protect herself with firearms,
would lead a person of ordinary prudence to believe there was an immediate danger to the
children. Thus, considering this evidence, a reasonable fact-finder could have formed a firm
belief or conviction that grounds existed to remove the children for abuse or neglect.
As noted earlier, Amy does not contest that she failed to comply with the provisions of
the trial court’s order “that specifically established the actions necessary for [her] to obtain the
return of [the children].” See TEX. FAM. CODE ANN. § 161.001(1)(O). It is also undisputed that
the children were in the Department’s custody for over nine months. Further, the record
conclusively establishes that the children were removed for abuse or neglect under Chapter 262
of the Texas Family Code. Therefore, we find that the State established the conduct necessary to
terminate Amy’s parental rights under Section 161.001(1)(O). Since we have found that the
State established at least one of the predicate acts under Section 161.001(1), we need not
consider Amy’s other alleged errors.
10
We affirm the judgment of the trial court.
Josh R. Morriss III
Chief Justice
Date Submitted: October 14, 2014
Date Decided: October 29, 2014
11