in the Interest of D.A. and S.G., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-15-00213-CV

IN THE INTEREST OF D.A. AND
S.G., CHILDREN

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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 325-548977-13

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MEMORANDUM OPINION1

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Appellant R.T. (Mother) appeals the trial court’s order terminating her

parental rights to D.A. (Darcy) and S.G. (Stacy).2 In four issues, she contends

that the evidence is legally insufficient to support the trial court’s findings

supporting termination. We affirm.

1
See Tex. R. App. P. 47.4.
2
To protect the identity of the children, we use aliases. See Tex. Fam.
Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8(b)(2).
 Background Facts

Mother gave birth to Darcy in 2010 and to Stacy in 2012. Darcy and Stacy

have different fathers. In July 2014, the Department of Family and Protective

Services (the Department) filed a petition asking for termination of Mother’s

parental rights to Darcy and Stacy if reunification could not be achieved. In the

petition, the Department also sought the termination of the fathers’ parental

rights.

To the petition, the Department attached an affidavit. The affidavit stated

that Mother had been diagnosed with a personality disorder,3 that she was a

long-time drug abuser, that she had recently picked up the children from a

daycare facility while under the influence of methamphetamine, and that she had

left with them from the daycare facility while they were not secured by seatbelts

or car seats.

In response to the petition, the trial court signed an order in which it named

the Department as the children’s temporary sole managing conservator and

authorized the Department to place the children with B.T., their maternal

grandmother (Grandmother). Later, the court appointed Grandmother to be the

children’s possessory conservator while the Department’s suit remained pending.

Denise Hamilton, a caseworker with the Department, became involved with

Mother and the children in August 2014. According to Hamilton, the Department

3
The evidence at trial established that Mother has been diagnosed as
bipolar.

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initially removed the children from Mother’s custody (and placed them with

Grandmother) because she had struck one of them during an altercation with one

of their fathers and because she had some “drug history.” Mother resisted the

children’s removal from her care, and police officers had to help the Department

complete the removal.

Through a service plan, the Department instructed Mother to complete

parenting classes; to take a drug-abuse assessment, which would determine

whether she needed prolonged treatment; to be subject to random drug testing;

to attend all scheduled visits with the children; and to participate in individual

counseling. Hamilton reviewed these services with Mother, and Mother

appeared to understand what the Department was asking her to do. But

Hamilton did not believe at that time that Mother was willing to address the

Department’s concerns because Mother denied striking her child and denied any

drug use.

Over the course of the case, the Department asked Mother approximately

twenty-five times to submit to a drug test, and the trial court twice ordered drug

testing, but she refused to take a drug test. Mother went to one session of

individual counseling but did not go again.

The Department set up visitation between Mother and the children on a

weekly basis at Mother’s request, but she first visited with them several months

after the Department had removed them from her care. After Mother’s first visit

with the children, she visited only occasionally, and she sometimes failed to

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attend the visits without prior cancellation. When she did visit them, she

sometimes became agitated and cursed in front of them because of her

frustration with the Department.

In February 2015 and again in June 2015, the trial court signed an order in

which the court stated that Mother had not adequately complied with the service

plan. The Department’s final service plan evaluation, which the Department filed

with the court in May 2015, showed that Mother had not completed any services.

A bench trial occurred in July 2015. Mother had not visited with the

children in more than a month before the trial. Although Mother spoke with

Hamilton on the morning of the trial and stated that she would attend the trial,

she did not do so. A week before the trial, she made a statement that she was

“done with [Child Protective Services],” which Hamilton interpreted as meaning

that Mother was not going to participate in any services or take Hamilton’s calls.

Mother also stated that she planned on taking the children away from

Grandmother and leaving Texas.

Hamilton asked Mother, who was thirty years old at the time of trial, where

she was living, and for months, Mother would not tell her. About a week before

the trial, Mother gave Hamilton her address, but Hamilton did not visit Mother

there because Mother told Hamilton that there was “no reason for [her] to come

out.” Mother never provided Hamilton with proof that Mother had a job.

Hamilton asked the trial court to terminate Mother’s parental rights to the

children because Mother had not visited with them and had not completed her

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services and because Grandmother was prepared to adopt them. Since the

children’s removal from Mother’s care, Hamilton visited Grandmother’s home

eleven or twelve times. Concerning Grandmother, Hamilton testified, “She

[makes] sure [the children have] food [and] shelter. She takes them to day care.

[Darcy] has neurological stuff going on. She takes her to the doctor to find out,

you know, what [is] going on. [Darcy] needed new glasses. [Grandmother]

makes sure that they have everything they [need].”

Grandmother was the only witness at trial other than Hamilton. She

testified that she had been involved with Darcy (who was five years old at the

time of the trial) and Stacy (who was two years old) throughout their lives. In

fact, Grandmother explained that the children had been living with her by

Mother’s consent just before their removal from Mother’s care but that Mother

had picked them up at the daycare facility, had backed into Grandmother’s truck,

and had sped away with the children while they were not secured with seatbelts

or car seats. Grandmother called the Department, and the Department removed

the children from Mother’s care soon thereafter.

Since then, Mother and Grandmother communicated with each other

through text messaging, but Mother often threatened to “get the girls.” Mother

has attacked Grandmother twice. For example, in May 2014, Mother physically

attacked Grandmother while Mother was holding Stacy. During the attack,

Mother dropped Stacy. Although Stacy did not sustain physical injuries other

than minor scratches, she became very afraid. Grandmother declined to ask for

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Mother’s criminal prosecution. The next morning, Mother again became upset,

and she slapped and pushed Darcy. Mother admitted that she was using

methamphetamine at that time, and Grandmother found drug paraphernalia in

Mother’s car.

According to Grandmother, when Mother uses methamphetamine, she

becomes antsy, angry, and vulgar. Grandmother noticed Mother engaging in

these behaviors approximately two weeks before the trial began, and

Grandmother believed that Mother was using drugs soon before the trial began.

Grandmother testified that she would be concerned for the children’s

safety if the trial court returned them to Mother’s care. She explained, “I believe

that she does not watch them even inside of the apartment. I know that she lets

them go outside of the apartment complex by themselves. In my heart, I am

afraid that she would rather hurt the children than allow them to come back to

me.”

Grandmother testified that the children share a room and that they enjoy

singing, coloring, and bike-riding. Concerning the progress that the children had

made since being placed in her care, Grandmother explained,

When they first came they were very quiet. If there was any kind of
loud noise, [Stacy], which is the youngest one, would immediately go
up to [Darcy] for protection . . . . Now there could be a boom and
that little one doesn’t even flinch. They are happy, they laugh, they
giggle, they play, they dance, and those were not the things that
they did before.

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Grandmother opined that the children would not be able do these things if Mother

regained custody of them, and Grandmother stated that it is in the children’s best

interest to remain in her care. Grandmother testified that if the trial court

terminated the parents’ rights to the children, she would adopt them, raise them

the “best [she] can,” love them, and provide for their needs.

At the trial’s conclusion, the trial court terminated Mother’s parental rights

to Darcy and Stacy, named the Department as the children’s permanent sole

managing conservator, and authorized the Department to arrange an adoption

with Grandmother.4 Mother brought this appeal.

Legal Sufficiency

Through four issues, Mother contends that the trial court erred by

terminating her parental rights because the evidence is legally insufficient to

support grounds for termination under the family code. 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 2014); 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.

4
The trial court also terminated the fathers’ parental rights; the fathers have
not appealed.

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Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)). We strictly

scrutinize termination proceedings in favor of the parent. In re E.N.C., 384

S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d

at 20–21.

Termination decisions must be supported by clear and convincing

evidence. See Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2015); Tex.

Fam. Code Ann. § 161.206(a); E.N.C., 384 S.W.3d at 802. “[C]onjecture is not

enough.” E.N.C., 384 S.W.3d at 810. 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). 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 2014); E.N.C.,

384 S.W.3d at 802.

For a trial court to terminate a parent-child relationship, the Department

must establish by clear and convincing evidence that the parent’s actions satisfy

one ground listed in family code section 161.001(b)(1) and that termination is in

the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384

S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). 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

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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 cannot

weigh witness credibility issues that depend on the appearance and demeanor of

the witnesses because that is the factfinder’s province. Id. at 573–74. 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.

Basis for termination under section 161.001(b)(1)

In her first through third issues, Mother contends that the evidence is

legally insufficient to support termination on any of the grounds stated in section

161.001(b)(1) of the family code. The trial court terminated Mother’s parental

rights on the grounds that she had knowingly placed or knowingly allowed the

children to remain in conditions or surroundings that endangered their physical or

emotional well-being, had engaged in conduct or knowingly placed them with

persons who engaged in conduct that endangered their physical or emotional

well-being, and had failed to comply with provisions of a court order that

established actions necessary to achieve their return to her care. See Tex. Fam.

Code Ann. § 161.001(b)(1)(D), (E), (O).

Section 161.001(b)(1)(E) allows a trial court to terminate parental rights if

the court finds that the parent has engaged in conduct or knowingly placed a

child with persons who engaged in conduct that endangered the physical or

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emotional well-being of the child. Id. § 161.001(b)(1)(E). Under this subsection,

the relevant inquiry is whether evidence exists that the endangerment was a

direct result of the parent’s conduct, including acts and failures to act. A.S. v.

Tex. Dep’t of Family & Protective Servs., 394 S.W.3d 703, 712 (Tex. App.—El

Paso 2012, no pet.); In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth

2003, no pet.).

“Endanger” means to expose a child to loss or injury or to jeopardize a

child’s emotional or physical health. In re M.C., 917 S.W.2d 268, 269 (Tex.

1996); A.S., 394 S.W.3d at 711. Thus, endangerment constitutes more than a

threat of metaphysical injury or the possible ill effects of a less-than-ideal family

environment; however, it is not necessary that the parent’s conduct be directed at

the child or that the child suffers injury. M.C., 917 S.W.2d at 269; A.S., 394

S.W.3d at 712. Termination under section 161.001(b)(1)(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. J.T.G., 121 S.W.3d at 125.

A parent’s exposure of a child to domestic violence may support a finding

that the parent endangered the child’s physical or emotional well-being. In re

L.E.S., No. 06-15-00015-CV, 2015 WL 4914743, at *5 (Tex. App.—Texarkana

Aug. 18, 2015, no pet.); In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth

2007, no pet.). Similarly, a parent’s use of illegal drugs, including doing so while

knowing that parental rights are in jeopardy, supports termination under

subsection 161.001(b)(1)(E). See In re J.O.A., 283 S.W.3d 336, 345 (Tex.

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2009); In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet.

denied); J.T.G., 121 S.W.3d at 125 (stating that “[d]rug addiction and its effect on

a parent’s life and ability to parent may establish an endangering course of

conduct”); see also In re R.S., No. 02-15-00137-CV, 2015 WL 5770530, at *5

(Tex. App.—Fort Worth Oct. 1, 2015, no pet.) (mem. op.) (concluding that there

was endangering conduct because a mother “continued to use

methamphetamines, fully aware that doing so could . . . prevent her from

reuniting with her children”).

Also as part of the endangering-conduct analysis, a court may consider a

parent’s failure to complete a service plan. See In re R.F., 115 S.W.3d 804, 811

(Tex. App.—Dallas 2003, no pet.); see also In re M.B., No. 02-15-00128-CV,

2015 WL 4380868, at *12 (Tex. App.—Fort Worth July 16, 2015, no pet.) (mem.

op.). Further, the risk of emotional harm from a parent’s missed visits with a child

may support a finding of endangerment. See In re M.D., No. 02-14-00305-CV,

2015 WL 729506, at *6 (Tex. App.—Fort Worth Feb. 19, 2015, no pet.) (mem.

op.); In re R.M., No. 07-12-00412-CV, 2012 WL 6163100, at *4 (Tex. App.—

Amarillo Dec. 11, 2012, no pet.) (mem. op.). Finally, as a general rule, conduct

that subjects a child to a life of uncertainty and instability endangers the child’s

physical and emotional well-being. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—

Houston [14th Dist.] 2014, pet. denied).

Considering the evidence in the light most favorable to the trial court’s

decision to terminate Mother’s parental rights, we conclude that the court could

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have reasonably formed a firm belief or conviction that Mother engaged in

conduct that endangered the children’s physical or emotional well-being. See

Tex. Fam. Code Ann. § 161.001(b)(1)(E); J.P.B., 180 S.W.3d at 573.

Specifically, the trial court could have rationally based its endangerment finding

on the evidence that Mother has a history of acting violently while around the

children (once with one of their fathers, once with Grandmother, and once with

Darcy);5 that she has a history of using illegal drugs (as established by

Grandmother’s testimony and as indicated by her refusal to submit to drug tests

while the case was pending in the trial court);6 that she made minimal efforts to

comply with provisions in her service plan while stating that she was “done with

CPS”; that she did not regularly visit the children, sometimes missed visits with

them without warning, and had angry outbursts in their presence during visits;

5
On appeal, Mother appears to concede that she has been violent in the
past, yet she argues that “[n]o evidence was presented that . . . if the children
were placed with [Mother], such an environment would continue.” But a
factfinder may infer from past conduct endangering a 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.) (op. on reh’g).
6
Mother emphasizes that in the trial court, no “failed drug test was
produced.” The trial court, however, could have inferred from Mother’s refusal to
take drug tests that she was using drugs. See In re K.C.B., 280 S.W.3d 888, 895
(Tex. App.—Amarillo 2009, pet. denied). Mother also argues that Grandmother’s
testimony concerning Mother’s drug use was not credible because it was self-
serving and not corroborated, but we must defer to the trial court’s implicit
determination that Grandmother was credible. See J.P.B., 180 S.W.3d at 573;
J.D.S. v. Tex. Dep’t of Family Protective Servs., 458 S.W.3d 33, 43 (Tex. App.—
El Paso 2014, no pet.) (“The trier of fact was the judge of witness credibility and
we will not encroach on that territory.”).

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that she threatened to take the children from Grandmother and abscond from the

state; that she once sped the children away from their daycare without securing

them; and that she did not adequately monitor them at her apartment complex

while she possessed them.

Based on these facts and the remaining evidence in the record, under the

authority cited above, we conclude that the evidence is legally sufficient to

support the trial court’s finding that Mother engaged in conduct that endangered

the children’s physical or emotional well-being. See Tex. Fam. Code Ann.

§ 161.001(b)(1)(E); J.P.B., 180 S.W.3d at 573. Therefore, we overrule Mother’s

second issue. Because the Department must prove only one ground under

section 161.001(b)(1) to support termination, we decline to analyze whether the

evidence is legally sufficient to support the trial court’s findings under subsections

(D) and (O) of that section, and we overrule Mother’s first and third issues. See

Tex. R. App. P. 47.1; In re K.S., 448 S.W.3d 521, 545 n.24 (Tex. App.—Tyler

2014, pet. denied); In re D.D.G., 423 S.W.3d 468, 475 (Tex. App.—Fort Worth

2014, no pet.).

Best interest

In her fourth issue, Mother argues that the evidence is legally insufficient to

show that termination of her parental rights to Darcy and Stacy is in their best

interest. See Tex. Fam. Code Ann. § 161.001(b)(2). We review the entire record

to determine a child’s best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex.

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2013). The same evidence may be probative of both the subsection

161.001(b)(1) ground and best interest. Id. at 249.

Nonexclusive factors that a factfinder may use in determining the best

interest of a child include the desires of the child, the emotional and physical

needs of the child now and in the future, the emotional and physical danger to

the child now and in the future, the parental abilities of the individuals seeking

custody, the programs available to assist these individuals to promote the best

interest of the child, the plans for the child by these individuals or by the agency

seeking custody, the stability of the home or proposed placement, the acts or

omissions of the parent which may indicate that the existing parent-child

relationship is not a proper one, and any excuse for the acts or omissions of the

parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402

S.W.3d at 249 (stating that in reviewing a best interest finding, “we consider,

among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807.

In addition to the evidence summarized above that supports the trial

court’s finding that Mother endangered the children, the record establishes that

while the case was pending in the trial court, Mother’s acts did not evidence any

motivation or desire for her to reunite with the children. Hamilton testified that

when she first reviewed the service plan with Mother, Mother did not appear to

be willing to address the Department’s concerns about the children. Mother did

not participate in services in any significant way, and although she was aware of

the trial that would permanently impact her rights concerning the children, she did

14
not attend it. In contrast, the testimony of Hamilton and Grandmother

established that Grandmother wants to adopt the children, that they are thriving

in her care, that she provides for their essential needs, and that she sought their

protection after Mother took them from the daycare facility. The trial court could

have reasonably found that the children’s emotional and physical needs would be

better met by Grandmother, that Grandmother has better parental abilities and

superior plans for the children, that she has a more stable home, and that

Mother’s acts show that her parental relationship with the children is not proper.

See Holley, 544 S.W.2d at 372. Viewing all of the evidence in the light most

favorable to the trial court’s termination decision, we conclude that the court

could have rationally formed a firm belief or conviction that termination of

Mother’s parental rights is in the children’s best interest. See Tex. Fam. Code

Ann. § 161.001(b)(2); J.P.B., 180 S.W.3d at 573; Holley, 544 S.W.2d at 372. We

overrule Mother’s fourth issue.

Conclusion

Having overruled all of Mother’s issues, we affirm the trial court’s judgment

terminating her parental rights to Darcy and Stacy.

/s/ Terrie Livingston

TERRIE LIVINGSTON
CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.

DELIVERED: December 10, 2015

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