In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00399-CV
IN THE INTEREST OF S.V., K.V., AND E.V., CHILDREN
On Appeal from the County Court at Law
Moore County, Texas
Trial Court No. CL45-14, Honorable Delwin T. McGee, Presiding
March 24, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, George, the father of S.V., K.V. and E.V., appeals the judgment of the
trial court terminating his parental rights to the named children.1 The mother of the
children, Deidra, had her parental rights terminated and has not appealed that
judgment. George brings forth four issues in this appeal. He contends that the
evidence was legally and factually insufficient to support the trial court’s judgment that
he (1) knowingly placed or allowed the children to remain in conditions or surroundings
which endangered the physical or emotional well-being of the children;2 (2) engaged in
1
We will refer to the appellant father as “George” and to the children by the initials S.V., K.V., and
E.V. TEX. R. APP. P. 9.8.
2
TEX. FAM. CODE ANN. § 161.001(1)(D) (West 2014).
conduct or knowingly placed the children with persons who engaged in conduct which
endangered the physical or emotional well-being of the children;3 (3) knowingly
engaged in criminal conduct that has resulted in his conviction of an offense and
confinement or imprisonment and inability to care for the children for no less than two
years from the date of filing of the petition;4 and (4) that termination of his parental rights
was in the best interests of the children.5 We will affirm.
Factual and Procedural Background
This is George’s third involvement with the Department of Family and Protective
Services (Department). The triggering event on this occasion was George’s arrest for
theft from a Walmart store in Abilene, Texas, while he had S.V. and E.V. in his care.
When the store employees tried to stop George at Walmart, he fled with the children to
a hotel where he was eventually arrested. As a result of George’s latest involvement
with law enforcement, the Department filed a petition for protection of a child, for
conservatorship, and for termination in suit affecting the parent-child relationship in the
326th District Court of Taylor County, Texas, on September 9, 2013. This case was
then transferred to County Court at Law of Moore County, Texas, on February 24, 2014.
Thereafter, all proceedings were held in Moore County.
During the trial, George testified that he had begun using methamphetamine
again and had, the day before the theft incident, smoked marijuana with Deidra. The
Department introduced evidence that all three of the children tested positive in a hair
3
Id. § 161.001(1)(E).
4
Id. § 161.001(1)(Q).
5
Id. § 161.002.
2
follicle test for methamphetamine. George admitted that he smoked methamphetamine
in the home where the children lived but contended that he never smoked
methamphetamine in front of the children. The testimony at trial revealed that George
had been a methamphetamine user for ten years.6 According to George’s testimony,
his longest period of sobriety since he started using drugs has been nine months.
In addition to the issue of drug usage, the Department submitted a substantial
amount of evidence relative to George’s involvement with the criminal justice system.
According to the testimony and exhibits, George had the following convictions: two
separate felony convictions for forgery in 2004, for which he was placed on deferred
adjudication; adjudication of both forgery cases based upon an admission of using
methamphetamines; a conviction for evading arrest in 2005; a conviction for possession
of methamphetamine in 2005 and a sentence of four years’ incarceration; a conviction
for theft in 2010; a conviction for evading arrest in 2011; a plea of guilty to felony
evading arrest in 2012, for which he was placed on three years deferred adjudication;
and a theft conviction in 2013.7 In addition to the above mentioned convictions, George
also had pending another theft and evading arrest charge. Since the current action by
the Department had been pending, George, by his own testimony, had been
incarcerated for all but two weeks of the case.
As stated above, this is the third time George had had interaction with the
Department over his children. The first time was at the birth of S.V., when S.V. tested
positive for methamphetamine. The child was placed with Deidra’s sister and was
6
The record reflects George started using methamphetamine when he was 21 years old and was
31 years old at the time of trial.
7
This was the offense that resulted in the current case with the Department.
3
eventually returned to George and Deidra. After S.V. was returned to the family,
George admitted that he resumed using methamphetamine on a daily basis. While
George was incarcerated, K.V. was born. K.V. also tested positive for
methamphetamine. The children, S.V. and K.V., were placed in the custody of the
Department. The children were returned to George and Deidra in October 2012. The
latest case was filed in September 2013. The trial court terminated George’s parental
rights and this appeal followed.
George contests the sufficiency of the evidence to prove the predicate acts
alleged in the Department’s petition for termination and found by the trial court to
support termination. TEX. FAM. CODE Ann. § 161.001(1)(D), (E), (Q).8
Standard of Review
The natural right existing between parents and their children is of constitutional
dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,
455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). A decree terminating
this natural right is complete, final, irrevocable, and divests for all time that natural right
as well as all legal rights, privileges, duties, and powers between the parent and child
except for the child’s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are
required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846
(Tex. 1980). However, parental rights are not absolute, and the emotional and physical
interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89
S.W.3d 17, 26 (Tex. 2002).
8
Further reference to the Texas Family Code will be by reference to “section ____” or “§ ____.”
4
The Texas Family Code permits a court to terminate the parent-child relationship
if the petitioner establishes (1) one or more acts or omissions enumerated under section
161.001(1), and (2) that termination of the parent-child relationship is in the best interest
of the child. § 161.001. Though evidence may be relevant to both elements, each
element must be proved, and proof of one does not relieve the burden of proving the
other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground and best interest
of the child must be proved, only one statutory ground is required to terminate parental
rights under section 161.001. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore,
we will affirm the trial court’s order of termination if legally and factually sufficient
evidence supports any one of the grounds found in the termination order, provided the
record shows that it was also in the best interest of the child for the parent’s rights to be
terminated. See id.
Due process requires the application of the clear and convincing standard of
proof in cases involving involuntary termination of parental rights. In re J.F.C., 96
S.W.3d 256, 263 (Tex. 2002); see § 161.206(a) (West 2014). “‘Clear and convincing
evidence’ means the measure or degree of 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.” § 101.007 (West 2014). This standard, which focuses on whether a
reasonable jury could form a firm belief or conviction, retains the deference a reviewing
court must have for the factfinder’s role. In re C.H., 89 S.W.3d at 26.
In reviewing the legal sufficiency of the evidence supporting an order terminating
parental rights, 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
5
conviction as to the truth of the allegations sought to be established. See In re J.F.C.,
96 S.W.3d at 266. “To give appropriate deference to the factfinder’s conclusions and
the role of a court conducting a legal sufficiency review, looking at the evidence in the
light most favorable to the judgment means that a reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could
do so.” Id. In other words, we will disregard all evidence that a reasonable factfinder
could have disbelieved or found to have been incredible. Id.
When reviewing the factual sufficiency of the evidence supporting a termination
order, we determine “whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction about the truth of the [Department]’s allegations.” In re
C.H., 89 S.W.3d at 25. In conducting this review, we consider whether the disputed
evidence is such that a reasonable factfinder could not have resolved the disputed
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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, then the evidence is factually insufficient.” Id.
Applicable Law and Analysis
Predicate Acts
The trial court found that the evidence supported termination of George’s
parental rights based upon subsection (D)’s endangering environment or conditions and
subsection (E)’s endangering conduct. See § 161.001(1)(D), (E). Evidence concerning
subsections (D)’s and (E)’s statutory grounds for termination is interrelated; therefore,
6
we will consolidate our review of the evidence supporting these grounds. 9 See In re
N.K., 399 S.W.3d 322, 329 (Tex. App.—Amarillo 2013, no pet.); In re I.G., 383 S.W.3d
763, 770 n.6 (Tex. App.—Amarillo 2012, no pet.). Endangerment of the child’s physical
or emotional well-being is an element of both subsections (D) and (E). See
§ 161.001(1)(D), (E); see also In re N.K., 399 S.W.3d at 329–30.
“[E]ndanger” means “to expose to loss or injury; to jeopardize.” Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Although “‘endanger’ means
more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal
family environment, it is not necessary that the conduct be directed at the child or that
the child actually suffers injury.” Id.; see In re P.E.W., 105 S.W.3d 771, 777 (Tex.
App.—Amarillo 2003, no pet.) (observing that child “need not develop or succumb to a
malady” in order to prove endangering conditions). In our review, we not only look at
evidence regarding the parent’s active conduct, but we also consider evidence showing
the parent’s omissions or failures to act. In re A.B., 125 S.W.3d 769, 777 (Tex. App.—
Texarkana 2003, pet. denied). The Texas Supreme Court has reiterated that
endangering conduct is not limited to actions directed toward the child: “It necessarily
follows that the endangering conduct may include the parent’s actions before the child’s
birth, while the parent had custody of older children, including evidence of drug usage.”
9
Indeed, this Court has observed the interrelated nature of evidence that could
support these two statutory grounds for termination: “Although the focus of subsection
(D) is on the child’s living environment and not on the parent’s conduct, parental
conduct may produce an endangering ‘environment.’” In re D.R.J., No. 07-08-00410-
CV, 2009 Tex. App. LEXIS 5231, at *7 (Tex. App.—Amarillo July 8, 2009, pet. denied)
(mem. op.) (citing In re D.T., 34 S.W.3d 625, 633 (Tex. App.—Fort Worth 2000, pet.
denied)). That is not to say, however, that the two subsections require the same
evidence. See In re U.P., 105 S.W.3d 222, 236 n.7 (Tex. App.—Houston [14th Dist.]
2003, pet. denied) (discussing the distinctions between subsections (D) and (E)).
7
In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see In re T.N., 180 S.W.3d 376, 383
(Tex. App.—Amarillo 2005, no pet.)
Analysis
Our review of the evidence convinces us that George has continued his
methamphetamine-driven lifestyle during the lives of these children. This conclusion is
supported by George’s admissions during his testimony that his longest period of
sobriety has been nine months. The conclusion is further buttressed by his admission
that his and Deidra’s entire relationship was built around methamphetamine use. Not
only has the methamphetamine use been of long standing, it has resurfaced since the
children were reunited with George in October 2012, as evidenced by his plea of true in
a proceeding to adjudicate in September 2014. As part the adjudication proceeding,
George admitted to violating his terms and conditions of community supervision by
using methamphetamine on June 8, August 4, August 10, and August 16 of 2013. At
the time he was arrested for theft in Abilene, George also admitted to using
methamphetamine in the days before his arrest. Based upon this admission, hair follicle
tests of the children’s hair was performed and these tests returned positive for
methamphetamine.
Drug use in the home is relevant evidence on the issue of endangerment. See
Dupree v. Tex. Dep’t of Protective and Regulatory Servs., 907 S.W.2d 81, 84 (Tex.
App.—Dallas 1995, no writ). A long history of drug use supports a finding that a parent
has engaged in conduct that endangers a child. See In re J.O.A., 283 S.W.3d at 346. It
is also true that the conduct of a parent in the home can create an environment that
endangers the physical or emotional well-being of a child under subsection D. See In re
8
W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no writ.); In re D.R.J., 2009
Tex. App. LEXIS 5231, at *7.
In addition to the evidence regarding George’s drug usage, the evidence
demonstrated that, for most of his children’s lives, George had been in and out of
various penal institutions. During the pendency of this last lawsuit, George had been
incarcerated all but two weeks. While it is true that incarceration, in-and-of-itself, does
not constitute endangering conduct, it is a factor when considering the issue of
endangerment. See In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no
pet.). We have held that intentional criminal activity which exposes a parent to
incarceration is relevant evidence tending to establish a course of conduct endangering
the emotional and physical well-being of a child. In re A.W.I., 61 S.W.3d 87, 89 (Tex.
App.—Amarillo 2001, no pet.) (per curiam) (citing Allred v. Harris Cnty. Child Welfare
Unit, 615 S.W.2d 803, 806 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.)).
George’s position is that much of the evidence regarding methamphetamine use
around the children is the responsibility of Deidra. This is so, according to George,
because, when the first two children tested positive for methamphetamine, he was
either incarcerated at the time of their births or had been released from incarceration for
only a short period of time. George then points to the efforts he has made to better
himself since this case has been pending. Under this theory, the trial court either
ignored this evidence or did not give it the amount of credence that George suggests is
proper. However, the question of the steps George has taken to better himself is
essentially a question of his credibility before the trier of fact. See In re R.D.S., 902
S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The trial court heard George’s
9
testimony and had the right to weigh it and make a determination of how much, if any, to
believe; to weigh said testimony; and draw reasonable inferences from it. See id. As a
reviewing court, we do not second guess the trial court on these matters. See id.
When applying the proper standard of review to George’s legal sufficiency
argument regarding subsections (D) and (E), we find that a reasonable trier of fact could
have formed a firm belief or conviction as to the truth of the allegations sought to be
established. See In re J.F.C., 96 S.W.3d at 266. In reviewing the factual sufficiency of
the evidence to support the trial court’s finding of the predicate acts under subsections
(D) and (E), the evidence is such that a factfinder could reasonably form a firm belief or
conviction about the truth of the [Department]’s allegations.” In re C.H., 89 S.W.3d at
25. Accordingly, George’s issues to the contrary are overruled.
Inasmuch as only one predicate act is necessary to support a trial court’s
decision to terminate a parent-child relationship, we need not address the trial court’s
finding regarding subsection Q. In re M.Y.G., 423 S.W.3d 504, 512 (Tex. App.—
Amarillo 2014, no pet.) (citing In re A.V., 113 S.W.3d at 361).
Best Interests of the Children
There is a strong presumption that a child’s interest is best served by preserving
the conservatorship of the parents; however, clear and convincing evidence to the
contrary may overcome that presumption. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)
(per curiam). The Texas Supreme Court has recognized a non-exhaustive list of factors
that are pertinent to the inquiry whether termination of parental rights is in the best
interest of the child: (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
10
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 omissions of the parent
which 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. See Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976); see also § 263.307 (West 2014) (providing extensive list of
factors that may be considered in determining child’s best interest). In examining the
best interest of the child, we may consider evidence that was also probative of the
predicate act or omission. See In re C.H., 89 S.W.3d at 28. The best interest
determination may rely on direct or circumstantial evidence, subjective facts, and the
totality of the evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,
no pet.).
The Department need not prove all nine Holley factors, and the absence of
evidence relevant to some of those factors does not bar a finding that termination is in
the child’s best interest, especially in the face of undisputed evidence that the parental
relationship endangered the child. See In re C.H., 89 S.W.3d at 27. No one Holley
factor is controlling, and evidence of one factor may be sufficient to support a finding
that termination is in the child’s best interest. In re A.P., 184 S.W.3d 410, 414 (Tex.
App.—Dallas 2006, no pet.) The evidence supporting the predicate grounds for
termination may also be used to support a finding that the best interests of the children
warrants termination of the parent-child relationship. In re D.S., 333 S.W.3d 379, 384
(Tex. App.—Amarillo 2011, no pet.).
11
Analysis
We begin our analysis by reviewing the evidence before the trial court. George
has had, and continues to have, significant issues with methamphetamine use. Not
only did George use methamphetamines in the past, according to the record, this use
continued after he had regained possession of the children. Indeed, the record reflects
that in the days before the Department took custody of the children, George was using
methamphetamines in the home on a continuous basis.
Additionally, there is the issue of George’s incarceration. He was incarcerated at
the time of trial and had been incarcerated for all but two weeks during the pendency of
this suit. George’s past conduct had resulted in his incarceration on numerous
occasions. At the time of trial, George still had two cases pending in Taylor County.
One case was a charge of theft and the other was for child endangerment. The record
reflects there is a significant question about whether George would even be available to
care for the children in the future.
At the time of trial, the children were residing with Kristen, Deidra’s sister.
Kristen had had the children placed with her each time the Department removed the
children from George’s custody. The record reflects that the children are very bonded
to Kristen. According to the caseworker’s testimony, Kristen is providing a stable home
for the children that meets their emotional needs. The Department’s position at trial was
that the best interests of the children would be served by allowing Kristen to adopt the
children.
On the other hand, George has had virtually no contact with the children since
their removal from his care. The record reflects that George has not seen the children
12
since September 2013. Since that date, according to the record, he has sent one or two
letters to the children. Nothing has been received from George since very early in the
case.
George contends that he is happy for the children to stay with Kristen until he is
released from prison. However, this desire of George does nothing to provide for the
support, care, and comfort for the children.
Among the Holley factors to consider is the desire of the children. The record
reflects that the children are bonded with Kristen. It is telling that, on the occasion of
S.V.’s birthday, George called Kristen’s home to speak with S.V., who refused to talk to
him. According to the record, S.V. was very disturbed by the phone call. As a result of
the phone call, S.V. has been in therapy to address changes in behavior that occurred
following George’s attempt to talk to her. S.V., according to the record, suffers a fear of
being ripped out of the home she has with Kristen. Based on the record, the desires of
the children would support the conclusion that the best interests of the children are to be
served by termination of George’s parental rights.
The emotional needs of the children now and in the future and the emotional and
physical danger to the children are two additional elements of the Holley analysis of
best interest. In connection with these elements, we need look no further than George’s
past conduct. Evidence that proves a predicate act may also be used to support the
trial court’s best interest finding. In re D.S., 333 S.W.3d at 384. Additionally, George’s
future conduct may be measured by his past conduct. See id. As our discussion of the
record clearly demonstrates, there are significant dangers to the children, both as to
their emotional needs and physical danger by returning the children to George. George
13
has presented testimony as to his plans for the children. However, this testimony was
vague at best. He wants the children to remain with Kristen for the foreseeable future
with no explanation as to how they are to be cared for, except by Kristen. While it is
true that George’s parents both testified they are willing to help financially, this
testimony lacked any specificity about amount of monetary support or, ultimately, how
George would intend to reintegrate into the lives of the children. Such speculative
testimony does not carry the day. It was for the trial court to weigh this testimony and
resolve any conflicts that arose therein. See In re J.F.C., 96 S.W.3d at 266. The record
supports the proposition that these two factors weigh heavily in favor of the trial court’s
best interest finding.
As to the Holley factor concerning the stability of the home or the proposed
placement, the record is also very clear. The only stable home these children have ever
known is with Kristen. George has been incarcerated much of the time these children
have been alive. The children are bonded with Kristen and, in fact, refer to her as
“mama.” Accordingly, this consideration weighs heavily in favor of the trial court’s best
interest finding.
We have previously discussed the party’s plans for the children. Again, the
record supports the trial court’s finding regarding the best interests of the children being
served by termination of George’s parental rights.
In the final analysis, the trial court had sufficient evidence to support a finding by
clear and convincing evidence that the best interests of the children was served by
termination of George’s parental rights. See In re J.F.C., 96 S.W.3d at 266.
Accordingly, George’s issue to the contrary is overruled.
14
Conclusion
Having overruled all of George’s issues regarding the sufficiency of the evidence
to support termination and the best interests of the children, we affirm the judgment of
the trial court.
Mackey K. Hancock
Justice
15