COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00114-CV
IN THE INTEREST OF B.A., A
CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant C.W. appeals the trial court’s order terminating her parental
rights to her daughter, B.A. In a single issue, C.W. challenges the legal and
factual sufficiency of the evidence to support the trial court’s family code section
161.001(2) finding that termination of the parent-child relationship between C.W.
and B.A. is in B.A.’s best interest. We will affirm.
B.A. was born in November 2008. She was approximately sixteen months
old at the time of the termination trial in March 2010. B.A.’s mother is twenty-
four-year-old C.W. D.A. is B.A.’s alleged biological father.
1
See Tex. R. App. P. 47.4.
C.W. began using cocaine and ecstasy, her drugs of choice, at age
nineteen or twenty.2 She tested positive for cocaine and opiates when she was
about five months’ pregnant with B.A. and admitted at trial that she used cocaine
―[p]robably daily‖ at that time. C.W. knew she was pregnant with B.A. when she
used illegal drugs but did so ―[b]ecause [she] really didn’t want [her] baby at first.‖
C.W. claimed she quit using illegal drugs about two to three months before B.A.
was born.
B.A. tested positive for cocaine when she was born. CPS opened a case
for her, and she was voluntarily placed with C.W.’s uncle’s wife, C.A. At some
point thereafter, C.A. turned B.A.’s care over to C.W.’s friend, L.S. In October
2009, B.A. was placed with her paternal grandmother, S.A., where she remained
until trial.
TDFPS developed a service plan for C.W., which included a psychological
evaluation, a drug and alcohol assessment with Merit Family Services, drug
tests, individual counseling, and parenting classes. C.W. completed the
psychological evaluation, performed a few individual counseling sessions, did not
follow through with additional parenting classes, and attended Merit sporadically
before being discharged from the program the month before trial for not
completing her services.
C.W. testified that she did not participate in Merit’s services much during
January, February, and March 2009 and that she used drugs during that time,
2
C.W. also used marijuana.
2
including ecstasy. C.W. refused to submit to drug tests in October 2009 and on
November 14, 2009, but she performed a drug test on November 19, 2009, and
tested positive for cocaine, opiates, and OxyContin. C.W. tested positive for
cocaine and opiates again in February 2010 and tested positive for cocaine,
opiates (morphine and heroin metabolite), and benzoylmethylecgonine in March
2010, the same month of the trial. D.A. and Shelly,3 C.W.’s friend, both tested
positive for drugs at some point during the case. D.A. executed an affidavit
during trial voluntarily relinquishing his parental rights to B.A.
On March 23, 2010, the trial court signed an order terminating C.W.’s
parental rights to B.A., finding by clear and convincing evidence that C.W. had
(1) knowingly placed or knowingly allowed B.A. to remain in conditions or
surroundings that endangered B.A.’s physical or emotional well-being,
(2) engaged in conduct or knowingly placed B.A. with persons who engaged in
conduct that endangered B.A.’s physical or emotional well-being, and (3) caused
B.A. to be born addicted to alcohol or a controlled substance. See Tex. Fam.
Code Ann. § 161.001(1)(D), (E), & (R) (Vernon Supp. 2010). The trial court also
found by clear and convincing evidence that termination of the parent-child
relationship between C.W. and B.A. is in B.A.’s best interest. Id. § 161.001(2).
C.W. appeals.
3
We use an alias (Shelly) to refer to C.W.’s friend because her initials are
identical to those of B.A.’s paternal grandmother, S.A.
3
In her only issue, C.W. argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of the parent-child
relationship between her and B.A. is in B.A.’s best interest.4
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. Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (Vernon 2008).
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.‖ Id. § 101.007 (Vernon 2008).
In reviewing the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
4
C.W. identifies three additional issues in the ―Issues Presented‖ section of
her brief that challenge the sufficiency of the evidence to support the trial court’s
family code section 161.001(1)(D), (E), and (R) findings, but she does not include
any argument on these issues in her brief. To the extent C.W. intended to raise
these three issues, they are waived for noncompliance with rule of appellate
procedure 38.1(i) and for inadequate briefing. See Tex. R. App. P. 38.1(i)
(requiring appellant’s brief to contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record);
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994)
(discussing ―long-standing rule‖ that issue may be waived due to inadequate
briefing).
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reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the
evidence in the light most favorable to the finding and judgment. Id. This means
that we must assume that the factfinder resolved any disputed facts in favor of its
finding if a reasonable factfinder could have done so. Id. We must also
disregard all evidence that a reasonable factfinder could have disbelieved. Id.
We must consider, however, undisputed evidence even if it is contrary to the
finding. Id. That is, we must consider evidence favorable to termination if a
reasonable factfinder could, and disregard contrary evidence unless a
reasonable factfinder could not. Id. We must therefore consider all of the
evidence, not just that which favors the verdict. Id. But 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 must defer to the factfinder’s
determinations as long as they are not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we must give due
deference to the factfinder’s findings and not supplant the judgment with our own.
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine whether, on
the entire record, a factfinder could reasonably form a firm conviction or belief
that the termination of the parent-child relationship would be in the best interest
of the child. Tex. Fam. Code Ann. § 161.001(2); In re C.H., 89 S.W.3d 17, 28
(Tex. 2002). If, in light of the entire record, the disputed evidence that a
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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.
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), (b) (Vernon 2008)
(listing factors that should be considered in evaluating the parent’s willingness
and ability to provide the child with a safe environment). 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 (I) any excuse
for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976). These factors are not exhaustive; some listed factors may be
inapplicable to some cases; other factors not on the list may also be considered
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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.
The record demonstrates that C.W. has engaged in a continuing course of
illegal drug use: she used illegal drugs before she was pregnant with B.A.; while
she was pregnant with B.A.; and after she was pregnant with B.A, including in the
same month of the termination trial. C.W.’s knowing use of illegal drugs while
she was pregnant with B.A. caused B.A. to test positive for cocaine when she
was born. C.W. also associated with individuals who tested positive for illegal
drugs (D.W. and Shelly) and admitted that she has friends who can get drugs for
her. At trial, C.W. denied that her use of illegal drugs is bad for her and even
admitted that she continues to use illegal drugs. She testified:
Q. All right. You said that CPS says that drugs are bad. Do
you think drugs are bad?
A. I think anything is bad.
Q. All right.
A. But that would be most of y’all’s opinion. I used the drug,
so, obviously, it’s not bad to me because I continue to use.
(emphasis added).
Further, and significantly, C.W. testified that she did not share TDFPS’s opinion
that it is in B.A.’s best interest to be raised in a home without any drug use. She
testified:
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Q. Do you believe that it is in [B.A.’s] best interest to be raised
in a home without any drug use?
A. [B.A.], yes. I mean, that would be y’all’s opinion.
Q. But that is also your opinion; is that right?
A. No. It’s not. Because y’all try to make drugs to be
something bad. Like if you’re high, you can’t provide for your child
and that’s a lie. (emphasis added).
Aside from C.W.’s admitted continuing illegal drug use and denial that it is
in B.A.’s best interest to be raised in a home without any illegal drug use, the trial
court admitted a judgment convicting C.W. of theft by check and a judgment
adjudicating her guilty of prostitution. Further, C.W. testified that she does not
have a job but that she works with her uncle cleaning houses sometimes, that
she does not have a bank account, that she has only $100 to her name, and that
she owns a car but does not have car insurance. A TDFPS employee testified
that it is in B.A.’s best interest to terminate C.W.’s parental rights, and S.A.
testified that it is in B.A.’s best interest to be raised by her and that she wants to
adopt B.A. if B.A. becomes available for adoption.
Considering the relevant statutory factors in evaluating C.W.’s willingness
and ability to provide B.A. with a safe environment and the Holley factors—
including the emotional and physical needs of B.A. now and in the future, the
emotional and physical danger to B.A. now and in the future, C.W.’s parental
abilities, and the acts or omissions of C.W. which may indicate that the existing
parent-child relationship is not a proper one—we hold that, in light of the entire
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record and giving due consideration to evidence that the trial court could have
reasonably found to be clear and convincing, the trial court could reasonably
have formed a firm belief or conviction that termination of C.W.’s parental rights
to B.A. is in B.A.’s best interest. Accordingly, the evidence is legally and factually
sufficient to support the trial court’s section 161.001(2) best interest finding. See,
e.g., In re D.M., 58 S.W.3d 801, 815 (Tex. App.—Fort Worth 2001, no pet.)
(holding evidence sufficient to support jury’s best interest finding); In re J.W., No.
02-08-00211-CV, 2009 WL 806865, at *6–7 (Tex. App.—Fort Worth Mar. 26,
2009, no pet.) (mem. op.) (holding evidence sufficient to support trial court’s best
interest finding). We overrule C.W.’s only issue and affirm the trial court’s order
terminating the parent-child relationship between C.W. and B.A.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.
DELIVERED: December 16, 2010
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