NO. 07-12-0228-CV
NO. 07-12-0231-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
NOVEMBER 2, 2012
______________________________
IN THE INTEREST OF K.J. AND T.J., CHILDREN
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NOS. 75,086-D & 79,622-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
This is a consolidated appeal of two separate orders terminating the parental
rights of Appellant, Debbie, 1 to her children, K.J. (Cause Number 75,086-D, Appellate
Cause No. 07-12-0228-CV), and T.J. (Cause Number 79,622-D, Appellate Cause No.
07-12-0331-CV), pursuant to chapter 161 of the Texas Family Code. 2 By a single issue,
1
To protect the children’s privacy, we refer to Appellant simply by her first name and other interested
parties by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (W EST SUPP. 2012). See also TEX. R.
APP. P. 9.8(b).
2
Although the Order of Termination in each case also terminated the parental rights of the respective
fathers, they did not appeal.
Debbie asserts the evidence was legally and factually insufficient to terminate her
parental rights. We affirm.
BACKGROUND
The two children the subject of this proceeding are K.J., a male born in April
2007, and T.J., a male born in March 2010. At the time of their removal, Debbie and
her children were residing in a dwelling owned by her mother, M.J., who herself owned
the house next door, and the children were ages three years, five months and six
months, respectively.
INVESTIGATION/REMOVAL
Prior to June 2010, the Texas Department of Family and Protective Services
had investigated Debbie for reports of physical neglect and neglectful supervision;
however, none of those investigations resulted in removal of her children. In June 2010,
the Department received a new report alleging that Debbie, T.J.’s father, M.P., and
Debbie’s sixteen year old son, C.J., had all been smoking marijuana and
methamphetamine. Although it was not reported that this conduct occurred in the
presence of the children, the Department became concerned that K.J. and T.J. were
being exposed to the illicit smoke on a regular basis. The report stated that Debbie and
M.P. were “high for days at a time” and they would then “sleep for a very long time.” It
was further reported that during these periods, M.J. would watch the children, but that
she was not physically capable of keeping up with them. In fact, during an investigatory
visit, one caseworker described M.J. as inadequately supervising K.J., by allowing him
to remain outside, without any direct supervision, adult or otherwise. The report also
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alleged “the children [were] dirty and smell of urine and that the home is in very poor
condition, with the roof caving in parts of the home.” When questioned by the
Department, Debbie denied using any drugs, but she did concede that C.J., who also
lived in the home, had used marijuana in the past and might still be doing so.
Due to allegations of drug use, the Department asked Debbie to submit to a drug
test. Initially she refused, noting that she would probably test positive for marijuana, but
later consented to the test. In August 2010, she did test positive for marijuana. Due to
the perceived neglectful supervision of the children and concern about drug use in the
home, the children were removed on September 3, 2010. After the boys were removed
from the home, Debbie “had a breakdown,” overdosed on her medications, and was
admitted to the Pavilion, a psychiatric facility, for evaluation.
Upon her release from the Pavilion, the Department set up a Family Service
Plan, setting forth certain goals for Debbie to achieve and delineating the circumstances
under which the children would be returned to her. The plan included random drug
testing, participation in and completion of parenting classes, individual counseling and
psychological evaluation, drug and alcohol assessment, completion of drug screens as
requested, obtaining and maintaining a “legal source of income” sufficient to support
herself and her children, maintenance of a stable household free of hazards, providing
appropriate “protection, food and shelter for her family,” and demonstration of a
“willingness and ability to protect [K.J. and T.J.].”
As a part of her counseling, Debbie reported that prior to September 2010, she
had actually been using methamphetamine twice a week and smoking marijuana daily,
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but she denied any use after that date. She admitted that her drug use included the
time when she was pregnant with both children. In 2011, she was placed on probation
for felony possession of methamphetamine and misdemeanor theft, and in October of
2011, she was in a substance abuse outpatient treatment program. She subsequently
graduated from that program.
On October 4, 2011, as a part of the Department’s reunification plan on a
“monitored return” basis, T.J. was returned to Debbie. K.J. was returned ten days later.
Two months later, on December 8, 2011, T.J. received emergency medical care for
injuries he received while being supervised by Debbie. Those injuries included bite
marks on his back from Debbie’s grandson, multiple bruises on his buttocks in different
stages of healing, and bruises to both sides of his face. Debbie’s explanation of the
injuries was that he fell into a fireplace while she was briefly outside. Due to these
injuries, on December 9, 2011, the children were again removed from the home.
Following this removal, Debbie again overdosed on her medication and was readmitted
to the Pavilion on a suicide watch. Based upon these incidents, the Department’s plan
for the children changed from reunification to termination. Since the second removal,
the children have remained in foster care.
DEBBIE’S PLAN COMPLIANCE
Following implementation of the Family Service Plan in September 2010, Debbie
participated in and completed court ordered and recommended services. She
successfully completed the “Families in Crisis Program,” the “Specialized Females
Program,” and the substance abuse program conducted by the Amarillo Council on
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Alcoholism and Drug Abuse. According to her counselor she had zero “no shows” and
she maintained a “good” overall attitude. She “took responsibility” for the situation, met
behavioral expectations, and acknowledged her continued need for treatment and
participation in a recovery program. She had an AA/NA sponsor and she attended a
group session on “almost a daily basis.” She eventually obtained gainful employment
and at the time of the final hearing had been employed for over eleven months. At the
final hearing, Debbie offered witnesses who confirmed her sobriety and her willingness
to take steps to provide a safe environment for her children.
Debbie’s compliance was not, however, without incident. While the children were
in foster care she was convicted of the two criminal offenses previously mentioned.
Furthermore, after the children were returned to her in October 2011, Debbie was told
that her older son, C.J. could have no access to the children. Despite acknowledging
this requirement, Debbie continued to allow C.J. into her home on occasion. She also
continued to make poor choices concerning her male companions and, as previously
mentioned, she suffered from psychological issues, including two suicide attempts.
THE CHILDREN
After K.J. and T.J. were removed from the home for the second time, they were
placed together in a foster home. At trial, the Department caseworker testified the
children were comfortable, happy, healthy, doing well, and interacting favorably with
their foster parents. The caseworker further described the children as thriving with all
their physical, psychological, and medical needs being met. T.J. was participating in
speech therapy, occupational therapy and physical therapy for delayed development.
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Due to their ages, neither child expressed an opinion as to their preferences, although it
was reported that they do refer to their foster parents as “mom” and “dad.” Additionally,
the foster parents want to adopt when the termination becomes final.
FINAL ORDERS
On May 17, 2012, a hearing was held and on July 6, 2012, the trial court issued
its Order of Termination in each case. By the respective orders, the trial court found
Debbie had knowingly placed or knowingly allowed her children to remain in conditions
or surroundings which endangered their physical or emotion well-being and she
engaged in conduct or knowingly placed her children with persons who engaged in
conduct which endangered their physical or emotional well-being. See §§
161.001(1)(D), (E). 3 The trial court also determined that it was in the children’s best
interest that the parent-child relationship be terminated. § 161.001(2).
THE ISSUE
Debbie concedes the evidence is legally sufficient to support the statutory
grounds for termination the Department sought to establish under subsections (D) and
(E) of section 161.001(1). Where Debbie disagrees with the order of termination is the
trial court’s best interest determination. She contends there were options less drastic
than termination that would have protected her rights as a parent, while at the same
time met the needs of the children. Specifically, she contends the trial court should
3
Throughout the remainder of this opinion, provisions of the Texas Family Code will be cited as “section
___” and “§ ___,” section 161.001(1)(D) will be referred to as “subsection (D),” and section 161.001(1)(E)
will be referred to as “subsection (E).”
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have continued the children’s placement with their foster parents, while naming her as a
possessory conservator.
DISCUSSION
INVOLUNTARY TERMINATION – STANDARD OF REVIEW
The natural right existing between parents and their children is a right “far more
precious than any property right” and is, therefore, one of constitutional dimension.
Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982);
accord In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, termination
proceedings are strictly scrutinized. Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex. 1985).
Parental rights, however, are not absolute and it is essential that the emotional and
physical interests of a child not be sacrificed merely to preserve those rights. In re C.H.,
89 S.W.3d 17, 26 (Tex. 2002).
In proceedings to terminate the parent-child relationship brought under section
161.001, the petitioner must establish one or more of the acts or omissions enumerated
under subsection (1) of the statute and, also prove that termination is in the best interest
of the child. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Though the same
evidence may be probative of both issues, both elements must be established and proof
of one element does not relieve the petitioner of the burden of proving the other. See In
re C.H., 89 S.W.3d at 28; Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976).
Furthermore, due to the elevated status of parental rights, due process requires that the
quantum of proof necessary in a parental-termination proceeding be elevated from
preponderance of the evidence to clear and convincing evidence. See In re E.N.C., No.
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11-0713, 2012 Tex. LEXIS 866, at *13, 56 Tex. Sup. J. 19 (Tex. Oct. 12, 2012) (citing In
re J.F.C., 96 S.W.3d 256, 253 (Tex. 2002)). See also § 161.001.
Clear and convincing evidence is that “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
allegation sought to be established.” § 101.007 (W EST 2008); In re E.N.C., 2012 Tex.
LEXIS 866, at *13-14. Involuntary termination proceedings are strictly construed in
favor of the parent. Id. at *14.
In a legal sufficiency review of the evidence to support an order terminating
parental rights, we look at all the evidence in the light most favorable to the finding to
determine whether a trier of fact could have reasonably formed a firm belief or
conviction as to the truth of the allegations sought to be established. § 101.007; In re
J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder’s conclusions
and the role of an appellate 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 the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. Id. A corollary to this rule is that we also disregard all evidence
that a reasonable factfinder could have disbelieved or found to have been incredible.
Id. This does not, however, mean that we disregard all evidence that does not support
the finding, id., or that the evidence must be uncontroverted. In re R.D.S., 902 S.W.2d
714, 716 (Tex.App.—Amarillo 1995, no writ).
If, after conducting its legal sufficiency review of the record evidence, a court
determines that no reasonable factfinder could form a firm belief or conviction that the
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matter that must be proven is true, then the court must conclude the evidence is legally
insufficient. Where the evidence is legally insufficient, rendition of judgment in favor of
the parent is generally required. Id. See also In re J.O.A., 283 S.W.3d 336, 344-45
(Tex. 2009).
When we conduct a factual sufficiency review of the evidence under a clear and
convincing burden of proof, the analysis is somewhat different in that we must consider
all the evidence equally, both disputed and undisputed, giving due consideration to any
evidence the factfinder could reasonably have found to be clear and convincing. 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.
SECTION 161.001(1)(D), (E)
The trial court found that Debbie knowingly placed or knowingly allowed her
children to remain in conditions or surroundings which endangered their physical or
emotional well-being and also engaged in conduct or knowingly placed the children with
persons who engaged in conduct which endangered the children’s physical and
emotional well-being. See §§ 161.001(1)(D), (E). “Endanger” means to expose to loss
or injury--to jeopardize. See In re J.T.G., 121 S.W.3d 117, 125 (Tex.App.—Fort Worth
2003, no pet.). Although “endanger” means “more than a threat of metaphysical injury
or the possible ill effects of a less-than-ideal family environment”; Walker v. Tex. Dep’t
of Family and Protective Servs., 312 S.W.3d 608, 616 (Tex.App.—Houston [1st Dist.]
9
2009, pet. denied), danger to a child need not be established as an independent
proposition but may be inferred from parental misconduct even if the conduct is not
directed at the child and the child suffers no actual injury. See Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Moreover, the conduct does not
have to occur in the child’s presence; Director of Dallas Cty. Child Protective Servs. v.
Bowling, 833 S.W.2d 730, 733 (Tex.App.—Dallas 1992, no writ), and may occur before
the child’s birth and both before and after the child has been removed by the
Department. See In re S.M.L.D., 150 S.W.3d 754, 757-58 (Tex.App.—Amarillo 2004,
no pet.); In re D.M., 58 S.W.3d 801, 812 (Tex.App.—Fort Worth 2001, no pet.).
Under subsection (D), it is necessary to examine the evidence related to the
environment of the child to determine if the environment was a source of endangerment
to the child’s physical or emotional well-being. In re D.T., 34 S.W.3d 625, 632
(Tex.App.—Fort Worth 2000, pet. denied). A child is endangered when the environment
creates a potential for danger that the parent is aware of but consciously disregards.
See In re S.M.L., 171 S.W.3d 472, 477 (Tex.App.—Houston [14th Dist.] 2005, no pet.).
Inappropriate, abusive, or unlawful conduct by persons who live in the child’s home or
with whom the child is compelled to associate on a regular basis in his home is a part of
the “conditions or surroundings” of the child’s home under subsection (D). See In re
J.T.G., 121 S.W.3d at 125 (abuse or violent conduct by a parent or other resident of
home may produce an endangering environment). See also In re W.S., 899 S.W.2d
772, 776 (Tex.App.—Fort Worth 1995, no writ) (“environment” refers not only to the
acceptability of living conditions, but also to a parent’s conduct in the home).
Subsection (D) permits termination based upon a single act or omission. Id.
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Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s physical or emotional well-being was the direct result of the
parent’s conduct, including acts, omissions, and failures to act. In re J.T.G., 121
S.W.3d at 125. Termination under subsection (E) must be based on more than a single
act or omission; a voluntary, deliberate, and conscious course of conduct by a parent is
required. Id.; In re D.T., 34 S.W.3d at 634. Thus, while both subsections (D) and (E)
focus on endangerment, they differ regarding the source and proof of endangerment. In
re S.M.L., 171 S.W.3d at 477. Subsection (D) concerns the child’s living environment,
rather than the conduct of the parent, though parental conduct is certainly relevant to
the child’s environment, and subsection (E) requires a course of conduct rather than a
single act or omission. Id. (citing In re J.T.G., 121 S.W.3d at 125). See In re R.D., 955
S.W.2d 364, 367 (Tex.App.—San Antonio 1997, pet. denied).
To determine whether termination is necessary, the factfinder may infer from past
conduct endangering the child’s well-being that similar conduct will recur if the child is
returned to the parent. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex.App.—Fort Worth
2009, no pet.). Conduct that subjects a child to a life of uncertainty and instability also
endangers the child’s physical and emotional well-being. Id.; In re S.D., 980 S.W.2d
758, 763 (Tex.App.—San Antonio 1998, pet. denied).
Based upon a review of the record, we agree with Debbie that a reasonable
factfinder could have formed a firm belief or conviction as to the truth of the statutory
grounds for termination the Department sought to establish under subsections (D) and
(E) of section 161.001(1). Accordingly, we proceed to the trial court’s best interest
finding.
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BEST INTEREST OF THE CHILD
In addition to a predicate violation, the Department must also establish by clear
and convincing evidence that termination is in the best interest of the child. §
161.001(2). Therefore, notwithstanding the sufficiency of the evidence to support
termination under subsections (D) and (E), we must also find clear and convincing
evidence that termination of the parent-child relationship was in the best interest of K.J.
and T.J. The same evidence of acts or omissions used to establish grounds for
termination under section 161.001(1) may also be probative in determining best interest
under section 161.001(2). In re C.H., 89 S.W.3d at 28.
While there is a strong presumption that the best interest of the child will be
served by preserving the parent-child relationship; see In re R.R., 209 S.W.3d 112, 116
(Tex. 2006) (per curiam), we must not lose sight of the fact that the best interest of the
child is always the primary consideration of the trial court in determining issues of
conservatorship, possession, and access to a child. § 153.002. In determining best
interest, the focus is on the best interest of the child--not the parent. See Dupree v.
Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex.App.—Dallas
1995, no writ). An appellate court’s review of the factfinder’s conclusions must not be
so rigorous that the emotional and physical interests of the child are sacrificed, In re
C.H., 89 S.W.3d at 26, and the prompt and permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest. § 263.307(a) (W EST
2008). In making a best interest determination, a factfinder may consider the fact that
termination of parental rights may allow an adoption to occur so that an impermanent
12
foster care arrangement can be replaced by the permanent relationship that an adoption
affords. See In re C.H., 89 S.W.3d at 27.
In Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), the Texas Supreme Court
provided a nonexclusive list of factors that the trier of fact in a termination case may use
in determining the best interest of the child. Id. at 371-72. These factors include: (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 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 that may indicate that the
existing parent-child relationship is not a proper one; (9) any excuse for the acts or
omissions of the parent. Id. These factors are not exhaustive, and some of the listed
factors may be inapplicable to some cases, while other factors not listed may also be
considered when appropriate. In re C.H., 89 S.W.3d at 27. Furthermore, there is no
requirement that the Department prove all factors as a condition precedent to a finding
that termination is in the best interest of the child, as undisputed evidence of just one
factor can be sufficient in a given case. Id.
ANALYSIS
With these considerations in mind, we review the evidence. Debbie asserts the
evidence pertaining to the best interest of the children was legally and factually
insufficient because the trial court did not consider the less drastic option of continuing
13
placement of the children with their foster parents while appointing her as a possessory
conservator. She contends the trial court’s decision was error because she had
complied with the directives of the Department, she was drug-free, she made other
positive improvements in her personal life, and her supervised visitation with the
children while in foster care had been satisfactory. While we do not disagree with her
contention that there were less drastic options available to the trial court, given the
evidence, it is not unreasonable for us to conclude the trial court believed that, if left in
Debbie’s care, the children would continue to live in a highly unstable and uncertain
environment. Nor is it unreasonable for us to conclude the trial court believed the
children were then living in a positive, safe and secure foster home with the very real
prospect of adoption. The children were doing well and were comfortable. The
children’s caseworker described them as “thriving” in their new home with all their needs
being met. While the fact that Debbie has taken significant and positive steps towards
providing a safe, stable and permanent environment for her children is to be
commended, we cannot evaluate the factfinder’s decision in the vacuum of the
circumstances as they existed at the time of the final hearing and we must give
appropriate deference to the factfinder’s judgment regarding the future best interest of
the children. Considering the entire record, we cannot say that a reasonable factfinder
could not have formed a firm belief or conviction that termination of Debbie’s parental
rights was in the best interest of the children. Accordingly, we hold the evidence is
legally and factually sufficient to support the trial court’s best interest finding.
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Conclusion
Debbie’s single issue is overruled and the trial court’s order of termination is
affirmed.
Patrick A. Pirtle
Justice
Quinn, C.J., concurring in result.
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