COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00168-CV
IN THE INTEREST OF M.A.M.S.
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
This is an ultra-accelerated appeal2 in which Mother and Father appeal the
termination of their parental rights to their daughter, M.A.M.S. In one issue each,
Mother and Father both argue that the evidence is legally and factually
insufficient to support the trial court‘s finding that termination of their parental
rights to M.A.M.S. was in her best interest. We will affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal was filed).
II. BACKGROUND
Unaware that she was in labor and believing that she was experiencing
bladder pain, Mother gave birth to M.A.M.S. into a toilet on April 12, 2012.
Mother did not immediately retrieve M.A.M.S. Instead, Mother was shocked and
waited ―a minute or so‖ before removing the newborn child from the toilet.
Mother then took M.A.M.S. to the hospital, where both Mother and her newborn
tested positive for methamphetamine. A social worker was called to the hospital
and questioned Mother about her drug habit, to which Mother replied, ―What‘s
there to say[;] I have one.‖ But Mother stated that she only used illegal drugs
―socially.‖ Mother acknowledged that she knew that she was pregnant and yet
still used methamphetamine. Despite having tested positive for
methamphetamine the day M.A.M.S. was born, Mother claimed to have last used
methamphetamine two weeks prior to that day.
The hospital could not immediately release M.A.M.S. from care because
she was born suffering from methamphetamine withdrawal and required
morphine therapy. She was also spitting up blood. At the time of her birth,
M.A.M.S. weighed four pounds ten ounces. Father did not come to the hospital,
and he refused to return the social worker‘s calls for six weeks. Hospital officials
relayed concern to the Department of Family and Protective Services (DFPS) via
Child Protective Services (CPS) that Mother continually complained that
someone was going to kidnap M.A.M.S. from the hospital. CPS took possession
of M.A.M.S. upon her release and placed her in foster care. After nearly a year
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of supervised visitations, and group and individual counseling for both Mother
and Father, CPS sought termination of their parental rights to M.A.M.S.
At the termination hearing, Sandra Boatner, a case aide for CPS, testified
that on several occasions she brought M.A.M.S. from foster care to CPS for
monitored visits with Mother and Father. Boatner said that she observed both
Mother and Father during these visits. Boatner said that on one occasion in
October 2012, after observing Mother and Father arguing in M.A.M.S.‘s
presence, she requested that Father take a drug test, to which Father ―refused
and walked out.‖ Boatner averred that on that same occasion Mother was ―pretty
rough‖ when handling M.A.M.S.: ―She would . . . leave red marks on [M.A.M.S.‘s]
arms.‖ This concerned Boatner because M.A.M.S. ―was pretty small.‖ Boatner
also said that despite repeated instruction, Mother often refused to properly
support M.A.M.S.‘s back and neck and that Mother became agitated by Boatner‘s
instructions.
On one specific visit, Boatner said that Mother, against policy, came to
Boatner‘s vehicle as she was bringing M.A.M.S. in for the supervised visit.
Boatner said that she asked Mother to go back to the lobby and wait until she
was called. Boatner described how Mother became ―very upset‖ and ―started to
grab‖ M.A.M.S. out of Boatner‘s arms. Boatner testified that Mother screamed
and ―cussed‖ at her and that Mother accused Boatner of trying to take her baby.
Mother also alleged that Boatner was ―getting too attached to her baby.‖ Boatner
said that this encounter concerned her because Mother ―was very aggressive.‖
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Later during that visit, Mother threatened Boatner and told her that she had
―better stay away.‖ Disturbed by Mother‘s behavior, Boatner asked that a
supervisor assist in observing the visit. During the visit, Boatner again instructed
Mother regarding her improper handling of M.A.M.S. Boatner said that she told
Mother that if she did not support M.A.M.S.‘s neck and back properly, she would
need to end the visit, to which Mother replied that Boatner was ―fucking lying‖
and that Boatner did not have the authority to end the visit. Boatner said that
through time, Mother‘s behavior became more agitated and threatening and that
Mother even began to follow Boatner in her vehicle when they would leave visits.
Vickye Key, a licensed chemical dependency counselor (LCDC) for
Recovery Resource Council, performed a drug screening and drug referral for
Mother in August 2012. Key testified that Mother claimed to have begun using
methamphetamine one-and-a-half years prior to the screening. Mother said that
she had used methamphetamine ―once‖ seven days prior to the August
screening. Mother also said that Father used methamphetamine in their home.
Key recommended that Mother attend a substance abuse outpatient program.
Mark Randall DeHart, a LCDC intern, counseled Father from October 31,
2012, through February 16, 2013. According to DeHart, Father has substance
abuse issues; specifically, alcohol and methamphetamine abuse, but Father
does not agree that he has these issues. Instead, Father believes that any
problems that he may have are the result of CPS removing M.A.M.S. from his
and Mother‘s home. DeHart testified that although Father completed the
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required number of counseling sessions, Father was neither stable nor sober
enough to effectively parent.
Charlotte Tucker, a LCDC for Mental Health Mental Retardation (MHMR)
of Tarrant County, also counseled Mother for both substance abuse and mental
health issues. By Tucker‘s account, Mother suffers from bipolar disorder and
schizophrenia. Mother expressed to Tucker that she hears voices and sees
―shadows.‖ Tucker testified that although Mother completed the initial stages of
counseling, she became indignant at Tucker‘s recommendation that she
complete a designed course of counseling specifically tailored to Mother. Mother
admitted to Tucker that she and Father had used methamphetamine after a
February 2013 court hearing. Much like Father, Mother blames any problems
that she might have on CPS. Mother does not believe that her
methamphetamine use is cause for concern.
Lori Smith, a LCDC and group counselor for MHMR‘s Community
Addiction Treatment Services, testified that she was Mother‘s group counselor
while Mother was participating in CPS‘s service plan. Smith also testified that
Mother admitted that she and Father had used methamphetamine after the
February 2013 court date. Smith testified that Mother had multiple relapses of
methamphetamine use while under her care. Mother said that CPS was
purposely trying to terminate her parental rights to M.A.M.S. and that if ―CPS
would just give [M.A.M.S.] back‖ to her, Mother believed that she would stop
hearing voices. According to Smith, Mother suffers from ―victimization‖; believes
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that she is being persecuted by CPS; and does not make the connection
between M.A.M.S.‘s removal and her mental and substance abuse issues. In
fact, Mother believes that her and Father‘s methamphetamine use is directly tied
to them being despondent over M.A.M.S.‘s removal from their home. Smith said
that due to Mother‘s mental health issues, which are exacerbated by
methamphetamine use, she would be concerned for M.A.M.S.‘s safety if she was
returned to Mother. Smith said that because M.A.M.S. was a ―drug-exposed
child throughout the entire pregnancy‖ and because Mother suffers from
―hallucinations,‖ M.A.M.S.‘s return to the home would put her ―at risk.‖
Nichelle Wiggins, a licensed clinical psychologist, performed a CPS-
requested psychological evaluation of Mother. During the evaluation, Mother
admitted to having used marijuana, cocaine, crank, and methamphetamine in the
past. Much like she expressed to Smith, Mother told Wiggins that her current
methamphetamine use was directly tied to M.A.M.S.‘s removal. And, like Father,
Mother has had multiple convictions for DWIs in the past. By Wiggins‘s account,
Mother hears voices and believes that people are conspiring against her. Mother
believes that recording equipment has been installed in various places, and she
has torn holes in the walls of her home, ransacked her own vehicle, and even
torn apart her shoelaces looking for hidden recording and audio equipment.
Mother believes that people are out to make her look bad and to separate her
from Father.
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Mother has stood in the kitchen and in her front yard yelling at the
imaginary voices. Wiggins said that Mother believes that if M.A.M.S. is returned
to her, she will stop hearing the voices. According to Wiggins, Mother lacks
proper coping skills and her only support system is Father. And Mother is
constantly accusing Father of having affairs and wanting to leave her. Wiggins
expressed that she believed Mother‘s behavior would be detrimental to M.A.M.S.
Jacqueline Parker, a licensed clinical social worker, also counseled Mother
and Father. Mother told Parker about her and M.A.M.S. having tested positive
for methamphetamine at the hospital. Parker said that during a June 2012
session, Mother claimed to have not used methamphetamine for a three-week
period but then recanted that position after having been confronted with a
positive drug-test result. According to Parker, Mother experiences ―rapid cycling‖
of her bipolar disorder, where she will cycle rapidly between depression and
mania. Mother expressed to Parker that a specific voice that she hears was that
of a person who could see everything that she did and everywhere that she went.
This voice says ―negative, derogatory comments to her‖ and also tells her that
Father is having an affair. Mother also told Parker about tearing holes in the
walls of her home and rifling through her vehicle looking for recording equipment.
In her professional opinion, Parker said that Mother is simply not capable of
providing a safe and healthy environment for M.A.M.S.
Parker said that Father refused to come to counseling for months. Once
there, Father initially denied that he used drugs. But after being confronted with
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a positive drug-test result, he admitted to having used marijuana and
methamphetamine. Parker said that Father even once came to a counseling
session exhibiting signs of being under the influence of methamphetamine.
Later, Father refused to submit to multiple drug tests. Father expressed to
Parker that his and Mother‘s problems would go away if CPS would return
M.A.M.S. Parker also said that Father has ―persecution‖ issues and does not
admit his own role in M.A.M.S.‘s removal from their home. She also said that
Father avoids confrontation ―at all costs.‖ Parker said that Father is ―not taking
responsibility [and is always] blaming others for his problems.‖ Given his scant
participation in counseling and his refusal to admit to his substance abuse
problems, Parker believes that, like Mother, Father is incapable of providing a
safe and healthy environment for M.A.M.S.
CPS caseworker Kurt Pafford conducted a home investigation of the
couple‘s house. Pafford said that the couple had a clean house and that there
was nothing specifically wrong with the living conditions of the home, but Pafford
expressed concern over the couple‘s continual argumentative and confrontational
relationship and its ill effects upon M.A.M.S. Pafford said that he had observed
Mother and Father demonstrate neglect toward M.A.M.S. during supervised
visits.
Pafford was also responsible for detailing CPS‘s service plans to Mother
and Father. According to Pafford, when he was explaining her service plan,
Mother became confrontational about drug use. Although Mother completed
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some steps in her service plan, Pafford said that Mother did not complete a
recommended psychological evaluation; failed to attend some individual
counseling; and, although she did attend the required number of parenting
classes, she failed to demonstrate proper parenting after attending the classes.
Pafford said that during the time he supervised Mother‘s service plan, she failed
multiple drugs tests and refused to submit to others. Pafford said that Mother
was incapable of providing a proper emotional and physical environment for
M.A.M.S.
According to Pafford, Mother does not understand that M.A.M.S. is
developmentally delayed. This is so despite Pafford having informed her multiple
times. Pafford also said that after a supervised visit with M.A.M.S., when Pafford
was returning M.A.M.S. to foster care after the session, Mother followed him in
her vehicle. Pafford described that Mother followed him dangerously close, that
he feared she might cause her vehicle to collide with his; and that this
endangered M.A.M.S., who was riding in the car with him. Pafford described this
event: ―I was making some pretty obvious turns that didn‘t make sense in my
driving, and she continued to follow me. And that concerned me greatly.‖
Pafford averred that because of Mother‘s drug use, mental-health issues, her
destruction of property related to her hallucinations, and her lack of
understanding of M.A.M.S.‘s physical needs, he was convinced that termination
of parental rights between Mother and M.A.M.S. was in the child‘s best interest.
9
As to Father, Pafford said that Father did not complete counseling; did not
maintain sobriety; and despite also completing the required parenting classes,
did not demonstrate proper parenting during supervised visits. Pafford said that
like Mother, Father refused multiple drug tests and failed many others. By
Pafford‘s account, Father ―fosters a chaotic environment.‖ Pafford testified that
he believed that it was in M.A.M.S.‘s best interest that Father‘s parental rights
also be terminated.
Pafford testified that M.A.M.S. has progressed since being in foster care,
but he also said that M.A.M.S. maintains developmental delays, including lack of
some function in her left leg. He said that it is his recommendation that M.A.M.S.
be placed with Mother‘s nephew and wife. They have expressed a desire to
adopt M.A.M.S. CPS has conducted a positive home study on the couple, and
they are the only relatives that have expressed a desire to raise M.A.M.S.
Further, they have purchased a crib, toys, and clothing for M.A.M.S., and they
have demonstrated in a supervised environment that they can adequately tend to
M.A.M.S.‘s special needs related to her developmental delays. Pafford said that
unlike Mother and Father, the nephew and his wife have the capacity to make
sure that M.A.M.S. can ―catch up‖ developmentally.
After hearing all the evidence, the trial court ordered that both Mother‘s
and Father‘s parental rights in M.A.M.S. be terminated under Texas Family Code
section 161.001(1)(D) and (E). The trial court also found that termination of their
parental rights was in M.A.M.S.‘s best interest. The trial court further ordered
10
that Mother‘s nephew and wife be named M.A.M.S.‘s possessory conservators.
This appeal followed.
III. DISCUSSION
In both of their sole issues, Mother and Father contend that the evidence is
legally and factually insufficient to support the trial court‘s finding that termination
of their parental rights is in M.A.M.S.‘s best interest. Neither Mother nor Father
challenge the trial court‘s statutory endangerment findings, and we therefore do
not address them. See Tex. R. App. P. 47.1.
A. Standards of Review
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 the child‘s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Consequently, ―[w]hen the State seeks to sever
permanently the relationship between a parent and a child, it must first observe
fundamentally fair procedures.‖ In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)
(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. Id.; Holick, 685 S.W.2d at
20–21. ―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
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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).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2012), § 161.206(a)
(West 2008). Due process demands this heightened standard because ―[a]
parental rights termination proceeding encumbers a value ‗far more precious
than any property right.‘‖ E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S.
at 758–59, 102 S. Ct. at 1397); 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 conservatorship). 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.‖ Tex. Fam. Code Ann. § 101.007 (West
2008).
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 subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Id. § 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); In re D.T., 34 S.W.3d
625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on reh‘g).
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In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the finding and judgment.
Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder
could have done so. Id. We disregard all evidence that a reasonable factfinder
could have disbelieved. Id. We consider undisputed evidence even if it is
contrary to the finding. Id. That is, we consider evidence favorable to
termination if a reasonable factfinder could, and we disregard contrary evidence
unless a reasonable factfinder could not. Id. 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 defer to the factfinder‘s determinations as long
as they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder‘s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated the relevant conduct provision of section 161.001(1) and that
termination of the parent-child relationship would be in the best interest of the
child. Tex. Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28. If, in light of the
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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.
B. Best Interest
There is a strong presumption that keeping a child with a parent is in the
child‘s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child‘s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008).
Nonexclusive factors that the trier of fact in a termination case may use in
determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
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(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
Here, as to M.A.M.S.‘s desires, she was only twelve months old at the time
of the termination hearing, and thus her desires are unknown. As to the
emotional and physical dangers to and needs of M.A.M.S. now and in the future,
multiple CPS representatives, counselors, and caseworkers testified that due to
both parents‘ continuing methamphetamine use, their failure to recognize the
hazard to M.A.M.S. because of their drug use, the hostile environment created by
their constant arguing, their lack of recognition of M.A.M.S.‘s special needs from
her developmental delays, both parents‘ persecution complexes, and Mother‘s
auditory hallucinations, allowing M.A.M.S. to live with Mother and Father would
be detrimental and dangerous to her emotional and physical needs now and in
the future.
As to Mother‘s and Father‘s parental abilities, multiple witnesses testified
that despite Mother and Father having attended parenting classes, neither
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demonstrated proper parenting skills during supervised visitations, mother
physically mishandled M.A.M.S., and Father‘s presence created a ―chaotic
environment‖ for M.A.M.S. Furthermore, neither parent demonstrated a proper
understanding of how their drug use was detrimental to their ability to properly
parent M.A.M.S. In fact, both parents denied that the use of methamphetamine
interfered with their ability to parent M.A.M.S., and both Mother and Father
expressed a jaded belief that if M.A.M.S. was returned to them, their struggles
with drug abuse would vanish—a position that defies reality in that what
prompted CPS to remove M.A.M.S. from their care was M.A.M.S.‘s having tested
positive for methamphetamine immediately after birth.
As to the programs available to assist Mother and Father to promote the
best interest of M.A.M.S., both Mother and Father demonstrated a lack of
commitment to CPS‘s service plans. Indeed, both Mother and Father refused
multiple drug tests, and they also tested positive for methamphetamine during
their sparse involvement in CPS‘s service plans. Additionally, both Mother and
Father demonstrated growing agitation toward counseling, and both Mother and
Father failed to learn from parenting classes.
As to Mother‘s and Father‘s plans for M.A.M.S., neither Mother nor Father
offered any evidence of plans that they have to ensure M.A.M.S.‘s proper
development and growth. On the other hand, CPS recommended, and the trial
court found, that M.A.M.S.‘s placement with Mother‘s nephew and wife would be
beneficial to M.A.M.S. because the nephew and wife had demonstrated proper
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parenting toward her in a supervised environment, including an appreciation of
M.A.M.S.‘s special needs relating to her delays in development, and a desire to
adopt M.A.M.S. Furthermore, CPS conducted a home study of the nephew and
wife and found their home to be a stable and proper environment for M.A.M.S.
Finally, both Mother‘s and Father‘s acts and omissions demonstrate that
the existing parent-child relationship is not a proper one. Mother gave birth to
M.A.M.S. into the toilet while she was under the influence of methamphetamine,
and she was unaware that she was even in labor. Father did not go to the
hospital nor contact CPS‘s social worker for more than six weeks. After CPS
provided Mother and Father with service plans, which included drug counseling,
Mother and Father continued to use methamphetamine. Mother‘s use of
methamphetamine is particularly dangerous given her propensity for
hallucinations and paranoia, and Father demonstrated a complete lack of proper
parent-child relationship by showing up to counseling under the influence of
methamphetamine. Also, both parents demonstrated neglect toward M.A.M.S.
while participating in supervised visits, and Mother threatened multiple CPS
workers, including following one of them dangerously close in her vehicle despite
M.A.M.S. being in the worker‘s car.
After weighing the evidence as it relates to the Holley factors, we hold that
the evidence is both legally and factually sufficient to support the trial court‘s
finding that termination of Mother‘s and Father‘s parental rights to M.A.M.S. is in
the child‘s best interest. See Tex. Fam. Code Ann. § 161.001(2); see also
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Jordan v. Dossey, 325 S.W.3d 700, 733 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied) (holding evidence legally and factually sufficient to support the trial
court‘s finding that termination of mother‘s parental rights was in child‘s best
interest when most of the best interest factors weighed in favor of termination);
In re A.C., 394 S.W.3d 633, 641 (Tex. App.—Houston [1st Dist.] 2012, no pet.)
(holding that mother‘s pattern of illegal drug use, both during pregnancy and after
undergoing treatment, supported trial court‘s best interest finding because it is
indicative that mother was not willing and able to provide child with safe
environment, resulting in physical danger to child, and tended to indicate
improper parent-child relationship) see also In re T.D.L., No. 02-05-00250-CV,
2006 WL 302126, at *9–10 (Tex. App.—Fort Worth Feb. 9, 2006, no pet.)
(mem. op.) (holding that legally and factually sufficient evidence existed to
support trial court‘s finding that termination of mother‘s parental rights was in her
children‘s best interest when, although mother and her children loved each other
and had a strong bond, mother continually misused prescription drugs, failed to
demonstrate adequate parental abilities, and failed to utilize various programs
provided by CPS). We overrule both Mother‘s and Father‘s sole issues on
appeal.
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IV. CONCLUSION
Having overruled both of Mother‘s and Father‘s sole issues on appeal, we
affirm the trial court‘s judgment.
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.
DELIVERED: October 17, 2013
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