TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00108-CV
J. R. and L. R., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. C2013-1122B, HONORABLE DIB WALDRIP, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants, J.R. (“Joey”) and L.R. (“Lena”), appeal from the trial court’s order
finding that termination of their parental rights was in the best interest of their children,
M.R. (“Michael”) and R.R. (“Rachel”).1 In his sole issue on appeal, Joey challenges the performance
of the children’s attorney ad litem. See Tex. Fam. Code § 107.004. In her sole issue on appeal, Lena
challenges the legal and factual sufficiency of the evidence supporting the trial court’s finding that
termination of her parental rights was in the children’s best interest. See id. § 161.001(2). For the
reasons that follow, we will affirm the trial court’s decision.
1
To preserve the parties’ privacy and for convenience, we refer to the children, their parents
and other family members by fictitious names. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App.
P. 9.8.
BACKGROUND
The Department’s involvement with Joey and Lena that led to its bringing suit to
terminate their parental rights began in May 2013. The Department’s investigator testified that the
Department received a referral of neglectful supervision, which alleged “drug use and domestic
violence between the parents.” The Department created a safety plan at that time that prohibited
Lena from any unsupervised contact with Michael and Rachel. The plan prohibited Joey from
supervising Lena’s conduct because of the domestic-violence allegations. Lena could not be located
at the time, however, so between May 2013 and the end of July 2013, the Department was not
able to offer her family-based safety services, which the Department does in an effort to avoid
legal intervention.
Although the Department sought to offer Lena services once she was located at the
end of July, the case escalated after “a serious incident” of domestic violence on August 26 between
Lena and Joey, which also raised concerns about ongoing methamphetamine use by one or both of
them. The police officer who responded to the incident testified that he was dispatched to assist in
a disturbance call in which a male “had been cut by the female and also been pepper sprayed. And
I believed that his firearm was in possession of this female.” EMS was called because Joey was
having difficulty breathing and appeared disoriented, which the officer believed was a result of the
pepper spray. When the Department’s investigator arrived at the home, Joey was at the hospital and
the children were at a neighbor’s house. The investigator spoke with Lena, who was still in the
home. The investigator testified that Lena “had extreme difficulty following the conversation” and
exhibited “very bizarre behavior,” including “very jerky movements and rapid speech” followed by
2
a rapid change to silence and inability to follow what the investigator was saying, all of which in the
investigator’s experience is “very indicative of being under the influence of methamphetamines.”
In addition, she observed several small plastic bags with residue in Lena’s car. Although Lena
denied to the investigator that she had been using drugs and refused to participate in a drug test, she
admitted to the investigator that she had people who provided methampetamines to her.
The Department’s investigator immediately put a safety plan in place with Lena that
required Lena to leave the home and not have any contact with the children. The investigator
communicated this plan to Joey, who was being treated in the hospital, and Joey agreed with the
plan. The next day, however, the Department removed the children based on the investigator’s
concerns that Joey was unable to be protective of the children. Joey had allowed Lena back in the
house the night before, and Lena had threatened him. Joey also appeared to be under the influence
of methamphetamines when the investigator arrived in the home, and the investigator testified that
Joey had a shotgun on the floor in the living room accessible to a child of any age. The Department
was granted temporary managing conservatorship of the children in August 2013.
The Department put court-ordered family-services plans in place for Joey and Lena
to help them resolve their issues so that their family could be reunited. Over time, however, it
became clear that reunification was unlikely due to both parents’ failure to make progress on
fulfilling the requirements of their plans. Accordingly, the Department brought suit to terminate
their parental rights to Michael and Rachel. Michael was fifteen years old and Rachel was five years
old at the time of trial in January 2015.
3
There was an eight-day jury trial. In addition to evidence about the family’s past
history with the Department resulting from domestic violence and substance-abuse issues and about
Joey’s and Lena’s efforts to accomplish the goals on their family-service plans, which we discuss
in more detail below as it is relevant to Joey’s and Lena’s issues on appeal, the jury heard evidence
related to the children’s placements and progress made since the Department removed them. The
family’s caseworker also testified about the Department’s post-termination plans for the children.
The Department planned for Michael to be adopted by Joey’s father, Joey Sr., whom the Department
believed would be better able to protect Michael from Lena and Joey as Michael’s legal parent. The
Department planned for Rachel to be adopted by the foster parents with whom she had been placed
since February 2014.
The jury returned a unanimous verdict that Joey’s and Lena’s parental rights should
be terminated as to Michael and Rachel, that the Department should be appointed managing
conservator of both children, and that no possessory conservators should be appointed. The trial
court ordered termination of Joey’s parental rights based on the jury’s finding by clear and
convincing evidence that termination was in the children’s best interest and that Joey had committed
the following statutory grounds for termination: (1) he knowingly placed or allowed the children to
remain in conditions or surroundings that endanger the children’s physical or emotional well-being,
(2) he engaged in conduct or knowingly placed the children with persons who engaged in conduct
that endangers the children’s physical or emotional well-being, and (3) he failed to comply with
provisions of a court order that specifically established actions necessary for him to obtain return of
the children. See Tex. Fam. Code § 161.001(1)(D), (E), (O), (2). The trial court ordered termination
4
of Lena’s parental rights based on the jury’s finding by clear and convincing evidence that
termination was in the children’s best interest and that Lena had committed the following statutory
grounds for termination: (1) she knowingly placed or allowed the children to remain in conditions
or surroundings that endanger the children’s physical or emotional well-being, (2) she engaged in
conduct or knowingly placed the children with persons who engaged in conduct that endangers the
children’s physical or emotional well-being, (3) she failed to comply with provisions of a court order
that specifically established the actions necessary for her to obtain return of the children, and (4) she
used a controlled substance in a manner that endangered the children’s health or safety and either
failed to complete a court-ordered substance-abuse treatment program or continued abusing a
controlled substance after completion of a court-ordered substance-abuse treatment program. See
id. § 161.001(1)(D), (E), (O), (P), 2. This appeal followed.
ANALYSIS
On appeal, Joey asserts only that the performance of the children’s attorney ad litem
was deficient. See id. § 107.004. Lena challenges only the legal and factual sufficiency of the
evidence supporting the trial court’s finding that termination of her parental rights was in the
children’s best interest. See id. § 161.001(2). We address each party’s issue in turn.
Performance of the children’s attorney ad litem
Joey argues on appeal that the failure of the attorney ad litem during closing argument
to advocate Michael’s expressed desire to live with Joey was a breach of the ad litem’s duty under
Section 107.004 of the Texas Family Code and effectively deprived Joey of his rights to due process
5
and equal protection. See id. § 107.004 (requiring attorney ad litem for child to advise child and
represent child’s expressed objectives of representation in developmentally appropriate manner).
In response, the Department asserts that Joey lacks standing to complain about the children’s
attorney’s allegedly deficient performance. Moreover, because Joey does not challenge the
sufficiency of the evidence supporting the jury’s findings, the Department asserts that any prejudice
from the attorney’s closing argument could not have had an impact on the ultimate outcome of the
case because the evidence was sufficient to support the jury’s predicate-ground and best-interest
findings. We agree.
A party “may not complain of errors that do not injuriously affect it or that merely
affect the rights of others.” Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). Courts,
including this Court, have applied this rule in parental-termination cases and have held that a parent
does not have standing to complain about alleged deficiencies in the representation of his children
or his spouse. See, e.g., A.E. v. Texas Dep’t of Family & Protective Servs., No. 03-14-00414-CV,
2014 WL 7458731, at *5 (Tex. App.—Austin Dec. 23, 2014, no pet.) (mem. op.) (holding that father
lacked standing to complain about trial court’s decision to proceed when children’s attorney ad litem
was not present at beginning of hearing); S.M.M. v. Texas Dep’t of Family & Protective Servs.,
No. 03-12-00585-CV, 2013 WL 812088, at *3 n.5 (Tex. App.—Austin Feb. 26, 2013, no pet.) (mem.
op.) (noting that mother in parental-termination case lacked standing to complain about trial court’s
failure to appoint counsel to father); In re T.N., 142 S.W.3d 522, 524 (Tex. App.—Fort Worth 2004,
no pet.) (holding that mother did not have standing to complain about children’s attorney’s
performance on children’s behalf or on her own behalf). Joey does not point to any evidence in the
6
record demonstrating how his own constitutional rights were violated or how he was injured by the
attorney ad litem’s failure to emphasize Michael’s wishes in his closing argument. Moreover, the
record reflects that the children’s attorney ad litem made certain that Michael was able to testify in
an environment in which he would be comfortable expressing his desires. No family members were
present. All counsel agreed that only the trial judge should question Michael, and Michael was
allowed to have his therapist with him. In her closing argument, Joey’s attorney emphasized
Michael’s testimony about his desire to live with his dad, and if not with his dad, his grandfather,
and also to live with his sister. We conclude that without evidence of injury to himself by the
attorney ad litem’s allegedly deficient performance, Joey lacks standing to raise this complaint, and
we overrule his sole appellate issue.
Sufficiency of the evidence supporting the best-interest determination
Lena asserts that the evidence is legally and factually insufficient to support the jury’s
verdict that terminating her parental rights is in the children’s best interest. The Family Code
requires the jury to find by clear and convincing evidence that termination of parental rights is in the
child’s best interest. Tex. Fam. Code § 161.001(2). In a legal-sufficiency review, we examine all
the evidence in the light most favorable to the jury’s finding, assuming that the jury resolved
disputed facts in favor of its finding if a reasonable factfinder could do so, but disregarding disputed
evidence that a reasonable factfinder could have disbelieved. In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002). We will conclude that the evidence is legally sufficient only if a reasonable factfinder could
form a firm belief or conviction that termination of Lena’s parental rights was in the children’s best
interest. See id. In a factual-sufficiency review, we review all of the evidence in a neutral light and
7
give “due consideration to evidence that the factfinder could reasonably have found to be clear and
convincing.” Id. We may conclude that the evidence is factually insufficient only 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 about the truth of the Department’s allegations. Id.
In a parental-termination case, the best interest of the children is assessed using a
non-exhaustive list of factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These
factors include (1) the children’s wishes, (2) their emotional and physical needs now and in the
future, (3) emotional or physical danger to the children now and in the future, (4) the parenting
abilities of the parties seeking custody, (5) programs available to help those parties, (6) plans for the
children by the parties seeking custody, (7) the stability of the proposed placement, (8) the acts or
omissions of the parent that indicate that the existing parent-child relationship is not proper, and
(9) any excuses for the acts or omissions of the parent. See id. at 372. The Department need not
prove all nine Holley factors as a “condition precedent” to termination, and the absence of some
factors does not preclude the factfinder from finding by clear and convincing evidence that
termination is in the children’s best interest, especially when there is undisputed evidence that the
parental relationship endangered the child. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). While no one
factor is controlling, analysis of a single factor may be adequate in a particular factual situation
to support a finding that termination is in the best interest of the children. See In re J.O.C.,
47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.), disapproved of on other grounds by In re
J.F.C., 96 S.W.3d at 267 & n.39.
8
The jury heard evidence on all of the Holley factors, but Lena contends that credible
evidence was lacking for several factors. She focuses on the children’s desires, Michael’s present
and future physical and emotional needs, present and future physical and emotional danger to the
children, the programs available to assist her, and the stability of her home. We will begin by
examining the evidence related to Lena’s personal issues, and then will turn to an examination of
the children’s desires, the programs available to assist Lena, and the stability of her home. Finally,
we will examine the evidence related to the children’s present and future physical and emotional
needs and the crucial factor of whether Lena’s relationship with the children endangered their safety.
See In re C.H., 89 S.W.3d at 27.
Lena’s substance-abuse, mental-health, and domestic-violence issues
The jury heard evidence that Lena has a long history of abusing drugs, including pain
medications since 2005 and methamphetamines since 2007. In addition, Lena was diagnosed with
bipolar disorder in 1999, and she often forgets to take her prescribed medication, which resulted in
hospitalization for suicidal and homicidal feelings. Lena’s medication was changed to a shot once
every thirty days beginning in February 2013 to help avoid these issues. The jury heard evidence of
a long history of domestic violence between Lena and Joey in which Lena was the primary abuser.
Lena testified about this and acknowledged that she had assaulted Joey on multiple occasions and
that she has issues with aggression and maintaining control of her temper. The jury heard evidence
that Lena was convicted of misdemeanor theft in 2008, of driving while intoxicated with a child
passenger (Michael), and of fraudulent possession of a controlled substance in 2010 and that there
was a pending motion to revoke her probation for the felony DWI. The jury heard evidence of
9
Lena’s long history with the Department. Lena has had multiple cases with the Department since
2007, all of which concerned her domestic violence or drug use, and at trial, she acknowledged her
responsibility for the Department’s being involved in her life. Lena used opiates while she was
pregnant with Rachel, although Lena testified that they were prescription pain pills that her doctor
prescribed for her back pain when she was seven months pregnant. Rachel was premature and was
born drug positive and had trouble breathing when she born. Although Lena sought treatment for
her drug addictions and attended some Narcotics Anonymous or Alcoholics Anonymous meetings,
she had not attended any meeting in the four months before trial and she admitted last using
methamphetamines about three weeks before trial. Lena herself testified that as of the time of trial,
the children’s lives would be better without her and that “I have too many issues that I need to work
through.” We will further analyze those issues in the context of the evidence of the Holley factors
that Lena challenges on appeal.
Desires of the children
Lena contends that the desires of the children were not properly elucidated at trial,
that Michael never stated he refused to maintain contact with Lena, and that there was testimony that
the children indicated a desire to visit her during the case. The family’s CPS caseworker testified
about the children’s desire to visit Lena during the case. The caseworker testified that when a judge
allowed a visit near the holidays if the children wanted one, both children went, but that Michael
only agreed to participate in the visit if Rachel was going to be there. As discussed above, the trial
judge questioned Michael about where he wanted to live permanently. Michael stated that he wanted
to live with Joey, but he did not mention wanting to live with Lena. Rachel was too young to testify.
10
The children’s guardian ad litem testified that Michael “has expressed lack of interest [in] being
reunited with his mother.” Lena herself testified that she understood that Michael must feel “a lot
of resentment and anger” toward her. Joey testified that Michael wanted to live with Joey Sr. and
had also made statements about wanting to live with Joey. Joey testified that Rachel is “mad, angry,
doesn’t want to talk with Mom right now.” The CPS caseworker testified that Rachel had stated to
her and to Joey and Lena “that she wants to live with [her foster parents] forever” and she wants her
last name to be the same as her foster parents’ last name. There is no disputed evidence related to
the children’s desires about whether they wanted to be reunited with Lena.
Programs available to assist the parent
As for the programs available to assist Lena, Lena asserts without citation to the
record that the Department “did next to nothing to assist [Lena]” with completion of her family-
service plan. The record reflects that the Department created a plan for Lena to follow to achieve
the goal of family reunification. However, the CPS caseworker testified that Lena failed to complete
“the majority of the tasks on her service plan” and to reach the goals. Although Lena actively
participated in therapy up to a point and took responsibility for her role in the children’s removal
from the home, she stopped attending therapy at least two months before trial. Lena acknowledged
at trial that she did not complete the court-ordered service requirements, including the court-ordered
substance-abuse program, and stated, “I know that I’m in a bad place and I did not complete
my program.”
Lena attempted to complete two different inpatient substance-abuse programs but did
not successfully complete either and relapsed shortly after leaving both. There was also evidence
11
that Lena unsuccessfully participated in two outpatient treatment programs and that her counselor
for the last outpatient program discharged her unsuccessfully with a recommendation for Lena to
complete residential treatment somewhere that would address both her mental-health and substance-
abuse issues. In addition, there was evidence that Lena failed to: (1) maintain contact with the
Department; (2) maintain stable employment; (3) complete a violence intervention program;
(4) complete an inpatient drug treatment program; (5) regularly attend Alcoholics Anonymous or
Narcotics Anonymous meetings; (6) submit to a hair-follicle test, despite the Department’s attempts
to transport her to one; and (7) remain drug free. Lena tested positive for methamphetamine on
between thirteen to eighteen drug tests. None of this evidence was disputed at trial.
Stability of the home
The State has a compelling interest in establishing a stable permanent home for
a child, and stability of the proposed placement is one of the Holley factors. In re A.M.,
385 S.W.3d 74, 83 (Tex. App.—Waco 2012, pet. denied). Lena asserts that because she maintained
the same residence for many years, the jury did not consider the stability of the home when making
its best-interest determination. However, the evidence in the record reflects that Lena’s ongoing
drug use and mental-health and domestic-violence issues prevented her from maintaining a safe and
stable home. While it is true that Lena and Joey owned a home together for many years, there were
frequent periods when they were separated and Lena would move in with a friend or when Lena was
prohibited from the family residence because of Department interventions. Lena testified that at the
time of the children’s removal, she was staying at the home off and on. There was evidence that the
home Joey and Lena had shared was at risk of imminent foreclosure and that Lena also was facing
12
revocation of her probation for driving under the influence. In addition, Lena did not have any
employment or a car at the time of trial. None of this evidence was disputed. Although Lena
testified about her plan to go into another rehabilitation facility after trial that has programs and
doctors who can address her mental illness and back pain in addition to her drug addiction, the jury
could have disregarded this claim based on Lena’s unsuccessful past history with rehabilitation and
her recent drug use. See In re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *9 (Tex.
App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.) (explaining that lack of stability for
prolonged period entitled factfinder to determine that pattern would likely continue and that
permanency could only be achieved through termination and adoption).
Present and future physical and emotional danger to the children
Children’s present and future physical and emotional needs
Finally, we will examine the evidence related to the present and future physical and
emotional danger to the children and the children’s present and future physical and emotional needs.
Lena asserts that the record lacks evidence of any present and future emotional and physical danger
to the children because there was no testimony that Lena poses a current danger to the children, only
evidence of her past history with the Department. A factfinder may, however, infer from a parent’s
past conduct endangering a child’s well-being that similar conduct may recur in the future if the child
is returned to the parent. Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet.
denied). The Department presented evidence of Lena’s history of exposing the children to domestic
violence and her substance-abuse and mental-health issues, as well as her unstable residency in the
home and unstable employment. In particular, “drug-related conduct is a significant factor to which
the jury could have attached great weight in evaluating the best interests of the child[ren].” Dupree
13
v. Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no
writ). A parent’s “history, admissions, and conduct relating to drug abuse, and her inability to
maintain a lifestyle free from arrests and incarcerations” is relevant to a best-interest determination.
In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.). Although Lena took
responsibility for her past actions and acknowledged at trial that her conduct had endangered the
health and safety of the children, the jury was entitled to infer that her dangerous conduct might
continue if the children were returned to her. See id.
As for the children’s present and future physical and emotional needs, Lena argues
on appeal, without citation to the record, that a continued relationship with her would be beneficial
to Michael. The jury heard evidence that Michael had suffered head trauma while playing football
in September 2012 that eventually required him to have brain surgery. After his injury, Michael
began having seizures that were triggered by stress, and in particular, by the domestic violence that
occurred between Joey and Lena. In addition, he spent a month in a psychiatric hospital after he and
Rachel were removed from Joey and Lena’s home. The jury heard evidence from the CASA
representatives about some of Michael’s physical and emotional needs and about the progress he
made in those areas after being removed from the home.
CASA had been appointed by the court as the children’s guardian ad litem responsible
for making a best-interest recommendation for the children. The CASA volunteer who was
responsible for contact with the children testified that Michael is doing very well in school, although
he needs some extra help with math from a counselor who serves a dual role as a counselor and a
math tutor. The jury heard evidence that Michael is on medication for seizures, aggression,
14
insomnia, and trembling (a side effect of some of the drugs he is prescribed). The CASA volunteer
testified that Michael had made progress in the past year with his medications being decreased and
his grades improving and that he was doing well in the group home where he was placed at the time
of trial. The CASA volunteer also testified that Michael does not seem to feel a strong bond to his
mother. The CASA case-work supervisor recommended that Lena not be allowed to have any
contact with Michael. No evidence was presented by any party that a continued relationship with
Lena would be beneficial to Michael.
“The need for permanence is a compelling consideration in determining the child’s
present and future emotional needs.” In re T.D.C., 91 S.W.3d 865, 873 (Tex. App—Ft. Worth 2002,
pet. denied). A factfinder may consider the consequences of failure to terminate parental rights and
may also consider that the children’s best interest may be served by termination so that adoption may
occur rather than the impermanent foster-care arrangement that would result in the absence of
termination. D.O. v. Texas Dep’t of Human Servs., 851 S.W.2d 351, 358 (Tex. App.—Austin 1993,
no writ), disapproved of on other grounds by In re. J.F.C.,96 S.W.3d at 267 & n.39. The jury could
have reasonably considered the evidence it heard of the Department’s plans for Michael to be
adopted by Joey Sr. and for Rachel to be adopted by her foster parents. The jury also heard evidence
that Rachel’s foster parents had previously allowed visits and phone calls between Michael and
Rachel and had invited Michael to their home during the holidays. Rachel’s foster mother testified
that she and her husband wanted Rachel and Michael to continue to have a relationship if they were
able to adopt Rachel and that they would like for Rachel to continue to have a relationship with
her grandfather.
15
Viewing the evidence related to these and the other Holley factors in the light most
favorable to the jury’s finding, we conclude that the evidence is legally sufficient to prove that
termination of Lena’s parental rights was in the children’s best interest. See Holley, 544 S.W.2d at
372. Having given due consideration to the disputed evidence in the case, we reach the same
conclusion regarding the factual sufficiency of the evidence. The only disputed evidence in the case
related to discrepancies around some specific events, including Lena’s testimony that the plastic
baggies that the Department’s investigator saw in her car were used for beadwork, not drugs. There
was no disputed evidence related to the best-interest factors that Lena challenges on appeal. Any
evidence favoring a decision contrary to the jury’s decision “is not so significant that no reasonable
juror could have formed a firm belief or conviction” that termination of Lena’s parental rights is in
the best interest of the children. See In re K.M.L., 443 S.W.3d 101, 117 (Tex. 2014); In re J.F.C.,
96 S.W.3d at 266. We overrule Lena’s sole appellate issue.
CONCLUSION
Having concluded that Joey lacks standing to complain about the children’s attorney
ad litem’s performance and that sufficient evidence supports the jury’s finding that terminating
Lena’s parental rights was in the children’s best interest, we affirm the trial court’s order
of termination.
16
__________________________________________
Cindy Olson Bourland, Justice
Before Justices Puryear, Pemberton, and Bourland
Affirmed
Filed: July 30, 2015
17