in the Interest of N. D. B., a Child

NO. 07-11-00140-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

NOVEMBER 29, 2011

IN THE INTEREST OF N. D. B., A CHILD

FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

NO. 35,650; HONORABLE PHIL N. VANDERPOOL, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Amanda Woodard appeals a final Order of Termination by which the

trial court terminated the parent-child relationship between appellant and her child,

N.D.B.1 By four issues, appellant challenges the sufficiency of the evidence supporting

the judgment of termination. We will affirm.

Background

In June 2009, when N.D.B. was four months old, the Texas Department of Family

and Protective Services (“Department”) became involved with appellant and N.D.B. after

1
See Tex. R. App. P. 9.8(b)(1)(A) (West 2011) (requiring use of initials or
fictitious name in some cases). N.D.B.’s father voluntarily relinquished his parental
rights to N.D.B, and is not a party to this appeal.
they were found in a residence in Pampa, Texas, that contained methamphetamine,

used syringes and other drug paraphernalia. Appellant was arrested for manufacturing

methamphetamine and N.D.B. was removed from her care.

Later that month, the Department filed suit to terminate appellant’s parental

rights, alleging several grounds for termination under Family Code section 161.001(1)

and that termination would be in the best interest of N.D.B. Tex. Fam. Code Ann. §

161.001 (West 2011).2

The case was tried to the bench. Appellant testified, acknowledging her conduct

was detrimental to her child, but explaining her desire and efforts to be reunited with

N.D.B. Her father also testified on her behalf. The Department produced several

witnesses, all opining termination was proper and in the best interest of N.D.B.

The trial court found that appellant had (1) knowingly placed or knowingly

allowed N.D.B. to remain in conditions or surroundings which endangered the child’s

physical or emotional wellbeing; (2) engaged in conduct or knowingly placed the child

with persons who engaged in conduct which endangered the physical or emotional well-

being of the child; and (3) failed to comply with the provisions of a court order that

specifically established the actions necessary for her to obtain the return of N.D.B. Tex.

Fam. Code. Ann. § 161.001(1)(D), (E), and (O) (West 2011).3 Additionally, the trial

2
Unless otherwise indicated, subsequent references to statutory sections are to
the Texas Family Code Annotated (West 2011).

On appeal, appellant challenges additional grounds alleged in the Department’s
3

petition. Because the trial court did not terminate on those grounds, we will not address
them.
2
court found termination of appellant’s parental rights would be in the best interest of

N.D.B. Tex. Fam. Code Ann. § 161.001(2) (West 2011). On the basis of those findings,

which the court said were supported by clear and convincing evidence, the court

ordered termination of the parent-child relationship between appellant and N.D.B.

After appellant filed her notice of appeal, the district court entered an order in

which it found the appeal to be frivolous.4 Appellant appeals the final order terminating

her parental rights to N.D.B.

Analysis

Through four issues, appellant challenges the legal and factual sufficiency of the

evidence supporting the trial court’s findings that statutory grounds for termination

existed, and that termination would be in the best interest of N.D.B.5

4
Section 263.405(d)(3) of the Family Code requires the trial court to determine
whether an appeal from a final termination order is frivolous "as provided by section
13.003(b), Civil Practice and Remedies Code." Tex. Fam. Code Ann. § 263.405(d)(3)
(West 2011) (repealed by Act of 2011, ch. 75, § 5, effective September 1, 2011).
Section 13.003(b) provides that, "[i]n determining whether an appeal is frivolous, a judge
may consider whether the appellant has presented a substantial question for appellate
review." Tex. Civ. Prac. & Rem. Code Ann. § 13.003(b) (West 2002). An appeal is
frivolous if it lacks an arguable basis either in law or in fact. Lumpkin v. Dep’t of Family
& Protective Servs., 260 S.W.3d 524, 527 (Tex.App.—Houston [14th Dist.] 2009, pet.
denied).
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N.D.B.’s attorney ad litem submitted a brief generally noting there was some
credible evidence to support some of the Department’s grounds for termination but
argues the evidence did not rise to the level of clear and convincing evidence as
required. The ad litem also contended there was only a scintilla of evidence to support a
finding that termination was in N.D.B.’s best interest.

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Finding of Frivolousness

Appellant does not directly address the trial court’s finding her appeal is frivolous.

Notwithstanding the trial court’s finding, the record before us includes the evidence

presented at the termination hearing. In its brief, the Department states the issues in

terms of the correctness of the trial court’s frivolousness findings, but its arguments

address the merits of appellant’s attack on the sufficiency of the evidence. As have

other courts in similar situations, see In re J.J.C., 302 S.W.3d 436, 442-43 (Tex.App.—

Houston [14th Dist.] 2009, pet. denied), we will construe appellant’s appeal to include a

challenge to the trial court’s finding of frivolousness.

An appeal of a final termination order is limited to the issues presented in the

statement of points. Tex. Fam. Code Ann. § 263.405(i) (West 2011). When a

statement of points has been filed, a trial court finding the appeal to be frivolous

necessarily has determined there is no issue among those identified in the statement of

points that possesses an arguable basis in law and fact. See Lumpkin, 260 S.W.3d at

527; In the Interest of A.P., No. 07-10-00481-CV, 2011 Tex.App. LEXIS 6219, at *4

(Tex.App.—Amarillo Aug. 9, 2011, no pet.) (mem. op.). We review the trial court's

finding of frivolousness under the abuse of discretion standard but, with respect to

appeal points attacking the sufficiency of the evidence, we must take into account the

clear and convincing evidence standard applicable in termination cases. In re K.D., 202

S.W.3d 860, 867-68 (Tex.App.—Fort Worth 2006, no pet.). In making a frivolousness

determination under Section 263.405(d), a trial court is not being asked to decide the

merits of a party's appeal; that task falls to the appellate court. In re Q.W.J., 331 S.W.3d

9, 14 (Tex.App.—Amarillo 2010, no pet.). Instead, the trial court is to determine whether
4
there is an arguable basis for an appeal, i.e., whether the issues raised are frivolous.

Id.

In her statement of points, appellant asserted the evidence supporting the

grounds for termination was not clear and convincing. Specifically, she argued the

actions she had taken to rehabilitate herself and alleviate the circumstances requiring

the child’s removal defeated the grounds on which the court based its termination order.

She also asserted the evidence termination was in the child’s best interest was less

than clear and convincing because there was no evidence of several of the factors listed

in Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). We find these assertions state

arguable bases for appeal challenging the sufficiency of the evidence supporting both

the grounds for termination and the best interest finding. Accordingly, we must

conclude the trial court abused its discretion by determining the appeal was frivolous.

See In the Interest of A.B., 269 S.W.3d 120, 124-25 (Tex.App.—El Paso 2008, no pet.);

In re K.E.L., No. 11-10-00144-CV, 2011 Tex.App. LEXIS 4209, at *4-5 (Tex.App.—

Eastland June 2, 2011, no pet.) (mem. op.); In the Interest of J.S., No. 01-11-00062-CV,

2011 Tex.App. LEXIS 3445, at *8-9 (Tex.App.—Houston [1st Dist.] May 2, 2011, no pet.)

(mem. op.) (all finding abuses of discretion in frivolousness determinations). We will

therefore address the merits of appellant’s contentions.

Termination of Parental Rights

Parents' rights to "the companionship, care, custody and management" of their

children are constitutional interests "far more precious than any property right."

Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). In a

termination case, the State seeks not merely to limit those rights, but to end them finally
5
and irrevocably--to divest the parent and child of all legal rights, privileges, duties, and

powers normally existing between them, except for the child's right to inherit. See Tex.

Fam. Code Ann. § 161.206 (West 2011); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.

1985).

Because termination of parental rights is such a drastic act, due process requires

that the petitioner justify termination by clear and convincing evidence. See Tex. Fam.

Code Ann. § 161.206(a) (West 2011); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).

Clear and convincing evidence is "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." Tex. Fam. Code Ann. § 101.007 (West 2011). Because of the

severity and permanency of the termination of a parent-child relationship, termination

proceedings should be strictly scrutinized and involuntary termination statutes are

strictly construed in favor of the parent. Holick, 685 S.W.2d at 20-21.

For termination of parental rights under section 161.001, the trial court must find,

by clear and convincing evidence, both that the parent has engaged in one of the

grounds for termination listed in section 161.001(1) and that termination of the parent-

child relationship is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001

(West 2011); Horvatich v. Tex. Dep't of Protective & Regulatory Servs., 78 S.W.3d 594,

596 (Tex.App.--Austin 2002, no pet.).

While the proof must support both findings, often, evidence of statutory grounds

for termination will be relevant to the best interest determination. In re A.V., 113 S.W.3d

6
355, 362 (Tex. 2003); In re M.A.N.M, 75 S.W.3d 73, 79 (Tex.App.--San Antonio 2002,

no pet.); In re D.M., 58 S.W.3d 801, 814 (Tex.App.--Fort Worth 2001, no pet.).

Standard of Review

When both legal and factual sufficiency challenges are presented, the reviewing

court first reviews the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co.,

619 S.W.2d 400, 401 (Tex. 1981). Taking into account the burden of proof required at

trial, we review the legal sufficiency of the evidence in a termination proceeding by

considering all of the evidence in the light most favorable to the prevailing party,

indulging every reasonable inference in that party's favor, to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding was

true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In a factual sufficiency review of

a termination proceeding, we review all of the evidence in a neutral light to determine

whether the evidence is such that the finder of fact could reasonably form a firm belief

or conviction about the truth of the petitioner's allegations. In re C.H., 89 S.W.3d 17, 25

(Tex. 2002).

Statutory Grounds for Termination

By her third and fourth issues, appellant challenges the legal and factual

sufficiency of each of the statutory grounds for termination found by the trial court.

When a trial court finds more than one ground for termination under section 161.001(1),

the judgment of termination will be affirmed if the evidence supports any one of the

grounds, and the best interest finding. In re D.M., 58 S.W.3d at 813. We find the

evidence sufficient to support the trial court’s finding that appellant engaged in conduct

7
or knowingly placed N.D.B. with persons who engaged in conduct which endangered

the child’s physical or emotional well-being, under section 161.001(1)(E). Tex. Fam.

Code Ann. § 161.001(1)(E) (West 2011). It is thus not necessary for us to address the

sufficiency of the evidence supporting the other two grounds found by the trial court.

Tex. R. App. P. 47.1 (requiring opinion to address every issue raised and necessary to

disposition of the appeal).

To “endanger” means to expose to loss or injury, to jeopardize. In re M.C., 917

S.W.2d 268, 269 (Tex. 1996); Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531,

533 (Tex.1987). Under subsection E, the relevant inquiry is whether there was evidence

presented that the endangerment of the child's well-being was the direct result of the

parent's conduct, including acts, omissions, or failures to act. In re K.A.S., 131 S.W.3d

215, 222 (Tex App.--Fort Worth 2004, pet. denied); Dupree v. Tex. Dep't of Prot. & Reg.

Servs., 907 S.W.2d 81, 83-84 (Tex.App.--Dallas 1995, no writ). Termination under

subsection E must be based on more than a single act or omission; a voluntary,

deliberate, and conscious course of conduct by the parent is required. In re S.A.P., 169

S.W.3d 685, 702 (Tex.App.--Waco 2005, no pet.); In re J.T.G., 121 S.W.3d 117, 125

(Tex.App.--Fort Worth 2003, no pet.).

While endangerment requires 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

parent's conduct be directed at the child or that the child actually suffer injury. Boyd, 727

S.W.2d at 533. Endangerment may include what a parent does both before and after

the birth of a child. In re U.P., 105 S.W.3d 222, 234 (Tex.App.--Houston [14th Dist.]

2003, pet. denied); Avery v. State, 963 S.W.2d 550, 553 (Tex.App.--Houston [1st Dist.]
8
1997, no writ). As a general matter, conduct that subjects a child to a life of uncertainty

and instability may endanger the child's physical and emotional well-being under

subsection E. In re J.O.A., 283 S.W.3d at 345 n.4; In re K.B., No. 03-09-00366-CV,

2010 Tex.App. LEXIS 9783, at *13 (Tex.App.—Austin Dec. 9, 2010, no pet.) (mem. op.).

Drug addiction and its effect on a parent's life and ability to parent may establish an

endangering course of conduct by a parent sufficient to support a petition to terminate

parental rights. Perez v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427,

436 (Tex.App.—El Paso 2004, no pet.). "A parent's failure to remain drug-free while

under the Department's supervision will support a finding of endangering conduct under

subsection (E) even if there is no direct evidence that the parent's drug use actually

injured the child." Vasquez v. Tex. Dep't of Protective & Regulatory Servs., 190 S.W.3d

189, 196 (Tex.App.—Houston [1st Dist.] 2005, pet. denied). Further, evidence as to

conduct endangering another child may be relevant to a determination under subsection

E. In re J.C., 151 S.W.3d 284, 288 (Tex.App.—Texarkana, 2004, no pet.).

Recall, testimony showed N.D.B. was removed from appellant’s care when the

infant was four months old. Appellant’s own testimony established that before the

child’s removal, she used illegal drugs while N.D.B. was present. Although she told the

court she never used drugs in front of the child but went to a different room, she agreed

her drug use endangered N.D.B. Appellant’s father agreed that N.D.B. was always with

appellant and therefore would have been present when appellant used drugs. He

acknowledged appellant’s “serious drug problem.”

And appellant’s drug use was not limited to that period of time. The court heard

testimony appellant tested positive for methamphetamine in October 2009 and again on
9
March 22, 2010, the day she gave birth to another child. During her testimony,

appellant acknowledged her addiction to methamphetamine, and its use during her

pregnancy with the child born in March 2010. That child tested positive for

methamphetamine at birth. The evidence thus convincingly established appellant

engaged in a pattern of drug use, jeopardizing the well-being of N.D.B. and her sibling

born in March 2010.

Further, appellant had drug-related felony charges pending at the time of the

hearing. She was arrested four times between June 2009 and October 2010, when this

case was heard. The court was informed that one charge was a second degree felony

and two were third degree felonies, each carrying potentially significant prison

sentences if appellant is found guilty.

The court also heard testimony from a Department caseworker, Cross, that

appellant had lived at several addresses over the course of the case and did not have

stable housing. Cross testified she was concerned about appellant’s continued

relationship with her live-in boyfriend with whom she previously consumed drugs. A

psychologist indicated his opinion that he had serious doubts about appellant caring for

N.D.B. and, unless circumstances had changed drastically since he evaluated her in

November 2009, he did not believe she could provide N.D.B. with a safe and stable

environment.

There is evidence contrary to the trial court’s finding under subsection E. Cross

acknowledged appellant had completed many of her court-ordered services. Appellant

also testified about her compliance. We cannot agree, however, that evidence of

10
compliance with terms of her service plan or of improvements in her conduct nullified

the clear and convincing evidence of her endangering conduct. In re J.O.A., 283

S.W.3d at 346 (“[w]hile recent improvements made by [father] are significant, evidence

of improved conduct, especially of short-duration, does not conclusively negate the

probative value of a long history of drug use and irresponsible choices); Jordan v.

Dossey, 325 S.W.3d 700 (Tex.App.—Houston [1st Dist.] 2011, pet. denied) (noting

same); In re K.B., No. 03-09-00366-CV, 2010 Tex.App. LEXIS 9783, at *22 (even if jury

concluded mother had improved, it was free to determine any recent improvements did

not outweigh her past behavior). Further, compliance with some (even most) terms of a

service plan does not preclude termination of parental rights. In the Interest of A.C.B.,

198 S.W.3d 294, 298 (Tex.App.—Amarillo 2006, no pet.).

Viewing the evidence in the light most favorable to the Department as the

prevailing party, a rational trier of fact could have reasonably formed a firm belief or

conviction appellant engaged in conduct that endangered the physical or emotional

well-being of N.D.B. Likewise, viewing the evidence as a whole in a neutral light, a

rational trier of fact reasonably could have reached the same firm belief or conviction.

The evidence is legally and factually sufficient to support the trial court’s finding under

section 161.001(1)(E).

We overrule appellant’s third and fourth issues.

Best Interest of N.D.B.

In appellant’s first and second issues, appellant contends the evidence is legally

and factually insufficient to support the trial court’s conclusion that termination is in the

11
best interest of N.D.B. To terminate a parent's rights, the evidence must establish by

clear and convincing evidence that termination is in the best interest of the child. Holley,

544 S.W.2d at 370; Horvatich, 78 S.W.3d at 596. There is a strong presumption that the

best interest of a child is served by keeping custody in the natural parent. In re D.T., 34

S.W.3d 625, 641 (Tex.App.--Fort Worth 2000, pet. denied). However, while parental

rights are of constitutional magnitude, they are not absolute. See In re C.H., 89 S.W.3d

at 26. Just as it is imperative for courts to recognize the constitutional underpinnings of

the parent-child relationship, it is also essential that emotional and physical interests of

the child not be sacrificed merely to preserve that right. Id. The best interest analysis

evaluates the best interest of the child, not that of the parent. In the Interest of A.C.B.,

198 S.W.3d at 298.

In determining whether termination of a parent-child relationship would be in the

best interest of the child, courts may consider a number of factors. The factors listed by

the Texas Supreme Court in Holley include the desires of the child, the present and

future physical and emotional needs of the child, the present and future emotional and

physical danger to the child, the parental abilities of the person seeking custody,

programs available to assist those persons in promoting the best interest of the child,

plans for the child by those individuals or by the agency seeking custody, the acts or

omissions of the parent that may indicate that the existing parent-child relationship is

not appropriate, and any excuse for the acts or omissions of the parent. Holley, 544

S.W.2d at 371-72. But the list is not exhaustive. Further, no single consideration or

factor is controlling and a fact finder is not required to address all of them. Id. at 372.

12
 The record shows appellant is 26 years old, has four children, none of whom live

under her care. By the time of trial, N.D.B. was almost two years old, still too young to

express her desires to the court. But the court heard evidence casting doubt on

appellant’s bond with N.D.B. Appellant’s half sister, Shelby Fish, with whom the child is

placed, testified she had never seen appellant act as a mother toward the child. She

also said the child refers to her, not appellant, as “Mom.” The court also heard testimony

that appellant failed to keep scheduled visits with N.D.B., failed to adequately progress

through her services, and failed to attend all of her therapy sessions.

It is clear also that appellant has not recovered from the consequences of her

drug use. Not only does appellant face the possibility of significant jail time if found

guilty of the untried charges, she testified she was scheduled to enter treatment for sixty

days in an “intensive lockdown facility,” followed by up to 9 months in an inpatient facility

in which she would be required to earn the rights to have visitors and furloughs with her

family.

Not surprisingly, evidence showed appellant had not exhibited financial or

residential stability. See Dupree, 907 S.W.2d at 87 (the need for permanence is the

paramount consideration for the child’s present and future physical and emotional

needs; the goal of establishing a stable, permanent home for a child is a compelling

interest of the government).

In her testimony, appellant admitted she continued to live with the boyfriend with

whom she used drugs in the past. She and her father testified the relationship was

positive, but the trial court was not required to agree. See In re T.N., 180 S.W.3d 376,

13
382-83 (Tex.App.--Amarillo 2005, no pet.) (the trier of fact may believe all, part, or none

of the testimony of any witness).

Appellant admitted at trial that while she had made progress, she was not then in

a position to care for N.D.B. She told the court she did not think it was in N.D.B.’s best

interest to be placed with her at that time but she desired to “keep on the right track.”

She stated she was trying to change and wanted to keep her rights to N.D.B.

Appellant’s father also testified appellant was making significant efforts to improve her

situation. In re J.W.M., Jr. and L.P.M., 153 S.W.3d 541, 549 (Tex.App.—Amarillo 2004,

pet. denied) (the fact a parent exhibits improvements in her life during the months just

before trial does not mandate that the evidence in favor of best interest is sufficient); In

re M.G.D., 108 S.W.3d 508, 514-15 (Tex.App.--Houston [14th Dist.] 2003, pet. denied)

(holding that evidence of recent improvement and compliance with service plan is not

determinative).

Cross testified N.D.B. was placed with appellant’s half sister in September 2009

and the plan was to have her adopt the child. Cross testified N.D.B. is doing well and is

bonded to Fish and her male partner. N.D.B.’s biological father told Cross he wanted

N.D.B. to remain with Fish. Fish stated she did not know if termination of appellant’s

rights to N.D.B. was in N.D.B.’s best interest but that she would do what was best for

N.D.B. and allow contact with appellant and other family members. Appellant did not

express any plans for N.D.B.’s future. The guardian ad litem opined N.D.B. was doing

well in her placement and did not recommend she be returned to appellant. While there

is a strong presumption that keeping a child with a parent is in the child’s best interest,

14
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 2011).

In light of all the evidence viewed in accordance with the required standards, the

trial court could have reasonably formed a firm belief or conviction that termination of

appellant’s rights was in N.D.B.’s best interest. Accordingly, we find the evidence

legally and factually sufficient to support the trial court’s finding and overrule appellant’s

first and second issues.

Conclusion

Having resolved each of appellant’s issues against her, we affirm the judgment of

the trial court.

James T. Campbell
Justice

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