COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-250-CV
IN THE INTEREST OF A.R., R.T.R.,
AND L.R.M., CHILDREN
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FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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This is an appeal from an order terminating appellant’s parental rights to
her three children. In four issues, appellant challenges the legal and factual
sufficiency of the evidence to support each of the four grounds upon which
appellee, the Texas Department of Family and Protective Services, sought
termination. We affirm.
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… See Tex. R. App. P. 47.4.
Background Facts
The Department removed appellant’s three children from her care after
she was arrested for possession of marijuana found during a traffic stop. One
of her children, R.T.R., was in the car with her at the time, 2 and appellant said
she was on her way to pick up A.R. The officer who stopped appellant testified
that he smelled a “fresh” and “strong” odor of burnt marijuana as he
approached the driver’s side window. He searched appellant’s purse and found
a small baggie of marijuana, empty baggies, and a pipe with methamphetamine
residue inside; he also found baggies and scales in the car. 3 Appellant was
charged with and convicted of possession of less than two ounces of
marijuana.
The Department filed a petition to terminate appellant’s rights to all three
children, alleging that appellant
knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger the physical or
emotional well-being of the children;
2
… The officer who arrested appellant testified that R.T.R. appeared fine
and was not upset.
3
… Appellant also said there was a half-smoked joint in the car, which she
willingly gave to the officer. But she said she had not been smoking it.
According to appellant, the pipe, scales, and baggies were in the console of her
car and belonged to a drug dealer friend of hers, who had been in the car.
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engaged in conduct or knowingly placed the children with persons
who engaged in conduct which endangers the physical or emotional
well-being of the children;
....
constructively abandoned the children who have been in the
permanent or temporary managing conservatorship of the
Department or an authorized agency for not less than six months
and: (a) the Department or authorized agency has made reasonable
efforts to return the children to the mother; (b) the mother has not
regularly visited or maintained significant contact with the children;
and (c) the mother has demonstrated an inability to provide the
children with a safe environment; [and]
failed to comply with the provisions of a court order that
specifically established the actions necessary for the mother to
obtain the return of the children who have been in the permanent
or temporary managing conservatorship of the Department for not
less than nine months as a result of the children’s removal from the
parent under Chapter 262 for the abuse or neglect of the children.
See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (N), (O) (Vernon Supp. 2008).
A jury found that all four of these grounds for termination had been met and
that termination was in the children’s best interest. Accordingly, the trial court
signed an order terminating appellant’s parental rights to all three children and
naming the Department permanent managing conservator. Appellant timely
perfected this appeal.
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Issues on Appeal
Appellant challenges the legal and factual sufficiency of the evidence to
support all four grounds for termination found by the jury. She does not
challenge the best interest finding.
Standard of Review
A parent’s rights to “the companionship, care, custody, and
management” of his or her children are constitutional interests “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745,
758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547
(Tex. 2003). “While parental rights are of constitutional magnitude, they are
not absolute. Just as it is imperative for courts to recognize the constitutional
underpinnings of the parent-child relationship, it is also essential that emotional
and physical interests of the child not be sacrificed merely to preserve that
right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the
State seeks not just to limit parental rights but to erase them permanently—to
divest the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child’s right to inherit. Tex.
Fam. Code Ann. § 161.206(b) (Vernon Supp. 2008); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings and
strictly construe involuntary termination statutes in favor of the parent. Holick,
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685 S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort
Worth 2008, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subdivision (1) of the statute and must also prove that termination
is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L.,
163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established;
termination may not be based solely on the best interest of the child as
determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a). 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.” Id. §
101.007 (Vernon 2002). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
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In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination
were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must
review all the evidence in the light most favorable to the finding and judgment.
Id. This means that we must assume that the factfinder resolved any disputed
facts in favor of its finding if a reasonable factfinder could have done so. Id.
We must also disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We must consider, however, undisputed evidence even if it is
contrary to the finding. Id. That is, we must consider evidence favorable to
termination if a reasonable factfinder could, and disregard contrary evidence
unless a reasonable factfinder could not. Id.
We must therefore consider all of the evidence, not just that which favors
the verdict. Id. But we cannot weigh witness credibility issues that depend on
the appearance and demeanor of the witnesses, for that is the factfinder’s
province. Id. at 573, 574. And even when credibility issues appear in the
appellate record, we must defer to the factfinder’s determinations as long as
they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the verdict with our
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own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine
whether, on the entire record, a factfinder could reasonably form a firm
conviction or belief that the parent violated subsections D, E, N, or O of section
161.001(1). In re C.H., 89 S.W.3d at 28. 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 in the truth of its finding, then the evidence
is factually insufficient. H.R.M., 209 S.W.3d at 108.
Sufficiency of Evidence to Support Termination Under Section 161.001(1)(E)
Appellant contends that the evidence is insufficient to support termination
under subsections D and E because the Department failed to show a nexus
between the drug use and any negative effect on appellant’s children.
Specifically, appellant says that because there is no evidence she ever used
drugs in front of her children, there is no evidence to support D and E as
grounds. We will address the sufficiency of the evidence under subsection E
first.
When reviewing sufficiency under section 161.001(1)(E), we must
determine whether sufficient evidence exists that the endangerment of the
child’s well-being was the direct result of the parent’s conduct, including acts,
omissions, or failures to act. In re M.N.G., 147 S.W.3d 521, 536 (Tex.
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App.—Fort Worth 2004, pet. denied) (op. on reh’g). The term “endanger” as
used in section 161.001(1)(E) means to expose to loss or danger, or to
jeopardize. Boyd, 727 S.W .2d at 533; M.N.G., 147 S.W.3d at 536.
Termination under subsection E must be based on more than a single act or
omission; a voluntary, deliberate, and conscious course of conduct by the
parent is required. In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth
2007, no pet.); M.N.G., 147 S.W.3d at 536. But it is not necessary that the
conduct be directed at the child or that the child actually suffer injury. Boyd,
727 S.W.2d at 533; M.N.G., 147 S.W.3d at 536. The specific danger to the
child’s well-being may be inferred from the parent’s conduct alone. Boyd, 727
S.W.2d at 533; M.N.G., 147 S.W.3d at 536.
As a general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the physical and emotional well-being of a child. M.N.G.,
147 S.W.3d at 536; In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth
2004, pet. denied). Drug use and its effect on a parent’s life and her ability to
parent may establish an endangering course of conduct. R.W., 129 S.W.3d at
739.
Appellant admitted that she had been using drugs off and on since she
was twenty. She stopped using while pregnant with A.R. and R.T.R., but she
started again after R.T.R. was born. She stopped again while pregnant with
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L.R.M., but she started using again after his birth. Her fourth child—who was
born after A.R., R.T.R., and L.R.M. were removed from appellant—tested
positive for methamphetamine at birth.4
Appellant admitted to driving her children to school while “up” on
methamphetamine, and she agreed that this conduct was dangerous. She
explained that “up” did not mean that she had just used but that she had not
yet gone to sleep after using; she said she typically stayed awake for two days
after using methamphetamine. She also admitted to “sometimes” being around
her children after using. But appellant additionally testified that she did not use
drugs in front of her children; appellant and her children lived with her parents,
so she would leave the children with her parents or her brother 5 while she went
to do drugs.6 Sometimes, L.R.M. would stay with his paternal grandparents,
and at other times, appellant left the children with a paternal uncle and his
family. Further, appellant admitted to selling drugs; she acknowledged that
such an activity was potentially dangerous to her children.
4
… This baby was adopted shortly after her birth. She is not involved in
this appeal, nor was she involved in the underlying termination trial.
5
… Appellant’s brother has also been arrested for methamphetamine
possession.
6
… Appellant said she did drugs between one to two times per week.
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The jury could also have reasonably inferred that appellant had very
recently smoked, or was actively smoking, marijuana while driving with R.T.R.
in the vehicle on the day the police stopped her. Additionally, the officer who
stopped appellant testified that when he saw her, he was in the parking lot of
a known “drug house” as a result of a prior call. He stopped appellant because
he saw her pull into the parking lot, stop, back out, and turn back the way she
had been going. He testified that he and another officer were visible to
someone pulling into the parking lot. Thus, the jury could also have reasonably
inferred that appellant was going to the drug house with R.T.R. in the car and
that she changed her mind when she saw the officers.7
Appellant failed to appear for numerous scheduled drug tests that the
Department requested she take. She blamed her failure to appear for some of
the tests on a lack of transportation and at least one on the theft of her purse
and enclosed identification.
At the time of trial, A.R. and R.T.R.’s father was incarcerated. CPS had
twice investigated allegations that he had sexually abused both of his children.
7
… Appellant testified that the road was blocked, so she pulled into the
parking lot to turn around and go another way. The officer who stopped and
arrested appellant also testified that after her arrest, he saw appellant four or
five times at drug houses in the city, but appellant testified that she was there
because she had agreed to become an informant.
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Appellant has not divorced him,8 but she has had children with two other men,
and she was living with another man at the time of trial, her third boyfriend
since the removal. Both L.R.M.’s father and appellant’s boyfriend at the time
of trial have criminal records. The more recent boyfriend’s record includes a
conviction for enticing a child. Thus, the evidence shows that appellant has a
history of unstable relationships with men.
Appellant was unemployed throughout most of this case; she relied on
her father and grandmother to support her. At the time of trial, she was living
with her new boyfriend and managing a restaurant they had opened together,
but she testified that she was not yet making any money.
The record shows not only repeated and continuing drug use by appellant,
but also other conduct that would contribute to an unstable and potentially
dangerous lifestyle for her children. Accordingly, we conclude and hold, based
on the appropriate standards of review, that the evidence is legally and factually
sufficient to support termination under subsection E. See, e.g., In re T.N.S.,
230 S.W.3d 434, 438–39 (Tex. App.—San Antonio 2007, no pet.); In re
K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.) (noting that
8
… Appellant testified that she could not afford a divorce.
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drug use need not occur in child’s presence to be considered endangering
behavior). We overrule appellant’s second issue.
Because a petitioner need establish only one of the acts or omissions
enumerated under subdivision (1) of section 161.001, we need not address
appellant’s other issues regarding whether the evidence is legally and factually
sufficient to support the jury’s findings under subsections (D), (N), and (O). See
Tex. Fam. Code Ann. § 161.001(1)(D); Tex. R. App. P. 47.1; In re S.B., 207
S.W.3d 877, 886 (Tex. App.—Fort Worth 2006, no pet.).
Conclusion
Having overruled appellant’s second and dispositive issue, we affirm the
trial court’s judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DELIVERED: January 8, 2009
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