In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00224-CV
IN THE INTEREST OF A.M.A., A CHILD
On Appeal from the 84th District Court
Ochiltree County, Texas
Trial Court No. 13,560, Honorable William D. Smith, Presiding
September 27, 2016
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
G.A., the father of A.M.A., appeals from the judgment of the trial court terminating
his parental rights to A.M.A. A.M.A.’s mother, T.A., signed an affidavit of relinquishment
of her parental rights and is not a party to this appeal. We will affirm the judgment
entered by the trial court.
Factual and Procedural Background
The Department of Family and Protective Services (Department) first became
involved with A.M.A. in December of 2012. As a result of this initial involvement with
A.M.A., the Department instituted a Family Service Plan with G.A. on December 8. The
Department filed its petition for protection of a child, for conservatorship, and for
termination on December 12. After a full adversary hearing on December 12, the trial
court entered temporary orders naming the Department as temporary managing
conservator of A.M.A.
Subsequently, on May 8, 2014, the trial court entered a final order in suit
affecting the parent-child relationship. Pursuant to that order, the Department was
named A.M.A.’s permanent managing conservator. At the time of the final order
appointing the Department permanent managing conservator, G.A. was appointed
possessory conservator with certain restrictions on his visitation with A.M.A.
On April 9, 2015, the Department filed a petition to modify prior orders and for
termination in the suit affecting the parent-child relationship. A bench trial was held on
the Department’s petition on March 21, 2016. At the conclusion of the bench trial, the
trial court entered an order terminating G.A.’s parental rights pursuant to Texas Family
Code section 161.001(b)(1)(D), (E), (N), and (O), and finding that termination was in the
child’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), and (O)
(West Supp. 2016).1
At the trial, the Department’s caseworker, Jarrett Stone, testified to the facts
leading to the decision to seek termination of G.A.’s parental rights. Stone testified that,
at the original final hearing on May 8, 2014, the trial court ordered G.A. to complete
specific services. These services were incorporated into a Family Plan of Service that
was provided to G.A. and signed by him.
1
Further reference to the Texas Family Code will be by reference to “section ____” or “§ ____.”
2
As pertinent to this discussion, G.A. was ordered to:
(1) return to Texas within sixty days of the final hearing and begin
individual counseling sessions with a counselor agreed to by both
parties;
(2) demonstrate and show evidence of employment and housing;
(3) submit to random drug testing;
(4) participate in NA/AA meetings on a regular basis, and provide
verification of attendance;
(5) maintain contact with the Department.
In addition to those listed services, G.A. was also required to attend parenting classes
and undergo OSAR2 assessment to address substance abuse issues.
Stone testified that he had reviewed the requirements with G.A. However, G.A.
had not begun, much less completed, any of the services required. Stone further
testified that he had attempted to contact G.A. regarding the services through the mail
at the address G.A. had previously provided. In addition, Stone testified that he
attempted to contact G.A. through G.A.’s father in Montana and by trying to phone G.A.
at the various phone numbers he had for G.A. in his file. Throughout the entire
proceeding, Stone was only able to contact G.A. twice and, on both occasions, the
contact was at a local jail where G.A. was incarcerated.
In connection with the incarceration of G.A., Stone testified that, from the May
2014 hearing date to late December 2015, G.A. had been incarcerated a substantial
period of the time. When cross-examined about G.A.’s incarceration and whether such
incarceration would prevent G.A. from completing the services, Stone’s testimony was
that this was G.A.’s decision because he committed the crimes that led to his
incarceration.
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Outreach, Screening, Assessment and Referral Center.
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The record further reflects that, since the May 2014 hearing, G.A. has had no
contact with A.M.A. When testifying about G.A.’s lack of contact with A.M.A., Stone
stated that A.M.A.’s therapist recommended no contact between G.A. and A.M.A.
However, the Department did agree that G.A. could have some contact under very
controlled situations. After receiving this information, G.A. never contacted the
Department to initiate any visitation.
Testifying further about his contact with G.A., Stone stated that he had received
one letter from G.A. and “maybe” phone calls on two separate occasions. In neither
phone conversation did G.A. ever ask about A.M.A.
As stated above, Stone testified that G.A. had been incarcerated much of the
time during the pendency of the case. The Department offered a number of judgments
reflecting G.A.’s various criminal convictions. Of importance to our decisions are those
convictions occurring since the permanent conservatorship was awarded to the
Department in May of 2014. G.A. pleaded guilty to the felony offense of possession of a
controlled substance on May 14, 2015. He was sentenced to a term of one year
deferred adjudication. That matter had a pending application to adjudicate at the time of
the final hearing. Additionally, G.A. had numerous charges pending at the time of the
final hearing. These included possession of methamphetamine, burglary of a vehicle,
and possession of a dangerous drug. G.A. pleaded guilty to the possession of
methamphetamine on December 2, 2015, and received a six year sentence but was
placed on community supervision for five years. Stone opined that G.A.’s continued
involvement with controlled substances was endangering conduct that would affect his
parental rights with A.M.A.
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A.M.A.’s foster mother also testified at the termination hearing. A.M.A. had been
living with the foster family for almost three years on the date of the final hearing. The
foster family includes A.M.A. in all of the family activities and plan to adopt A.M.A. In
addition to A.M.A., the foster parents have two biological children, an adopted child who
is three years old, and a foster daughter who is seventeen years old.
The foster mother testified that A.M.A. is bonded to the family and refers to the
husband and wife as “dad” and “mom.” A.M.A. is in the first grade and appears to be
doing well in school.
Regarding G.A., the foster mother testified that A.M.A. never refers to him and is
very direct in asking that G.A.’s name not be mentioned in the family. A.M.A. has
verbalized a desire to be adopted by the foster parents.
At the conclusion of the evidence, the trial court terminated G.A.’s parental rights
and found that termination was in the best interest of the child. G.A. now appeals
presenting four issues that contend that the evidence was factually and legally
insufficient to support the trial court’s judgment. G.A. does not contest the trial court’s
finding that the best interest of the child is served by termination of his parental rights.
We will affirm.
Standard of Review
The natural right existing between parents and their children is of constitutional
dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,
455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). A decree terminating
this natural right is complete, final, irrevocable, and divests for all time that natural right
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as well as all legal rights, privileges, duties, and powers between the parent and child
except for the child's right to inherit. Holick, 685 S.W.2d at 20. That being so, we are
required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846
(Tex. 1980). However, parental rights are not absolute, and the emotional and physical
interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89
S.W.3d 17, 26 (Tex. 2002).
The Texas Family Code permits a court to terminate the parent-child relationship
if the petitioner establishes both (1) one or more acts or omissions enumerated under
section 161.001(b)(1), and (2) that termination of the parent-child relationship is in the
best interest of the child. § 161.001(b). Though evidence may be relevant to both
elements, each element must be proved, and proof of one does not relieve the burden
of proving the other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground
and best interest of the child must be proved, only one statutory ground is required to
terminate parental rights under section 161.001(b). See In re A.V., 113 S.W.3d 355,
362 (Tex. 2003). Therefore, we will affirm the trial court's judgment of termination if
legally and factually sufficient evidence supports any one of the grounds found in the
judgment, provided the record shows that it was also in the best interest of the child for
the parent's rights to be terminated. See id.
Due process requires the application of the clear and convincing standard of
proof in cases involving involuntary termination of parental rights. In re J.F.C., 96
S.W.3d 256, 263 (Tex. 2002); see § 161.206(a) (West 2014). "'Clear and convincing
evidence' means the measure or degree of proof that will produce in the mind of the trier
of fact a firm belief or conviction as to the truth of the allegations sought to be
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established." § 101.007 (West 2014). This standard, which focuses on whether a
reasonable jury could form a firm belief or conviction, retains the deference a reviewing
court must have for the factfinder's role. In re C.H., 89 S.W.3d at 26.
When reviewing the legal sufficiency of the evidence supporting an order
terminating parental rights, we look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed a firm belief or
conviction as to the truth of the allegations sought to be established. See In re J.F.C.,
96 S.W.3d at 265-66. "To give appropriate deference to the factfinder's conclusions
and the role of a court conducting a legal sufficiency review, looking at the evidence in
the light most favorable to the judgment means that a reviewing court must assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so." Id. at 266. In other words, we will disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible. Id.
When reviewing the factual sufficiency of the evidence supporting a judgment of
termination, we determine "whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the [Department]'s
allegations. In re C.H., 89 S.W.3d at 25. In conducting this review, we consider
whether the disputed evidence is such that a reasonable factfinder could not have
resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266.
"If, in light of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient." Id.
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Analysis
We begin our analysis by noting that the proof of one predicate act by clear and
convincing evidence is sufficient to support a trial court’s decision to terminate the
parental rights of a parent. See In re A.V., 113 S.W.3d at 362. The trial court found by
clear and convincing evidence that G.A. had engaged in conduct or knowingly placed
the child with persons who engaged in conduct which endangers the physical or
emotional well-being of the child. § 161.001(b)(1)(E). For purpose of a subsection (E)
analysis, endanger means to expose to loss or injury; to jeopardize. In re M.C., 917
S.W.2d 268, 269 (Tex. 1996) (per curiam). Further, such conduct does not necessarily
have to be directed at the child nor does the child have to suffer actual injury. See In re
M.J.M.L., 31 S.W.3d 347, 350 (Tex. App.—San Antonio 2000, pet. denied). Conduct
that subjects a child to a life of uncertainty and instability endangers the physical and
emotional well-being of that child. See In re R.W., 129 S.W.3d 732, 738-39 (Tex.
App.—Fort Worth 2004, pet. denied). When viewing the endangering conduct
allegation, a reviewing court may consider the parent’s failure to complete the service
plan. See In re R.F., 115 S.W.3d 804, 811 (Tex. App.—Dallas 2003, no pet.).
The record before the Court demonstrates a continued pattern of drug abuse by
G.A. The pattern of drug abuse demonstrated by G.A. pre-dates the original final
hearing where the Department was appointed permanent managing conservator.
Further, since the petition to modify and terminate was filed, G.A. has continued to use
and abuse controlled substances. Since the beginning of the termination proceeding,
G.A. has pleaded guilty to possession of a controlled substance on two separate
occasions. G.A. has spent a majority of his time since the filing of the modification and
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termination proceeding in jail or in another state. We have previously held that
intentional criminal activity which exposed the parent to incarceration is relevant
evidence tending to establish a course of conduct endangering the emotional and
physical well-being of the child. In re K.V., No. 07-15-00424-CV, 2016 Tex.App. LEXIS
3985, at *6 (Tex. App.—Amarillo Apr. 14, 2016, no pet.) (mem. op.) (citing In re A.W.T.,
61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.) (per curiam)). In addition to his
continued use of controlled substances, G.A. has availed himself of none of the services
offered by the Department which might have helped him overcome his substance abuse
issues.
Additionally, the record reflects that, since the petition to modify and terminate
was filed, G.A. has had virtually no contact with A.M.A. Not only has G.A. had no
contact with the child, when Stone visited with G.A. in person, G.A. did not inquire about
the child. Such infrequent visitation, in this case virtually no visitation, can also serve to
endanger a child’s well-being. See In re R.M., No. 07-12-00412-CV, 2012 Tex. App.
LEXIS 10239, at *13 (Tex. App.—Amarillo Dec. 11, 2012, no pet.) (mem. op.).
When viewed in a neutral light and taking into consideration conflicting evidence,
the record supports the proposition that the trial court could have reasonably formed a
conviction or belief about the truth of the Department’s allegations regarding G.A.’s
endangerment of A.M.A. See In re C.H., 89 S.W.3d at 25. Accordingly, the evidence is
factually sufficient to support the trial court’s judgment.
We therefore overrule appellant’s first issue that the evidence was not factually
sufficient to support the trial court’s judgment that G.A. had engaged in endangering
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conduct under section 161.001(b)(1)(E). We note, again, that G.A. has not contested
the trial court’s finding that termination was in the best interest of the child.
Conclusion
Having overruled G.A.’s first issue, we affirm the judgment of termination.
Mackey K. Hancock
Justice
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