Court of Appeals of Texas, Sixth District, Texarkana
Submitted: March 16, 2017
Appeal from the 6th District Court Lamar County, Texas Trial
Court No. 84799
Morriss, C.J., Moseley and Burgess, JJ.
R. Morriss III Chief Justice.
bench trial in October 2016, Terri's and Cal's
parental rights to their child, J.L.G., were terminated,
and the Texas Department of Family and Protective Services
(TDFPS) was appointed as J.L.G.'s permanent managing
conservator. Both Terri and Cal appeal these terminations and
challenge the sufficiency of the evidence supporting the
trial court's findings as to the statutory grounds for
termination and its finding that termination is in the
best interest of J.L.G. We affirm the trial court's
judgment as to Terri, but reverse it as to Cal, because (1)
on appeal, Terri does not challenge termination grounds (D)
and (E); (2) sufficient evidence supports the finding that
terminating Terri's parental rights was in J.L.G.'s
best interest; (3) no evidence supported terminating
Cal's rights on termination grounds (D) or (E); (4)
evidence was legally insufficient to support terminating
Cal's rights on ground (N), and (5) evidence was legally
insufficient to support terminating Cal's rights on
termination ground (O).
natural right existing between parents and their children is
of constitutional dimensions." Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a
fundamental right to make decisions concerning "the
care, custody, and control of their children."
Troxel v. Granville, 530 U.S. 57, 65 (2000).
"Because the termination of parental rights implicates
fundamental interests, a higher standard of proof-clear and
convincing evidence-is required at trial." In re
A.B., 437 S.W.3d 498, 502 (Tex. 2014). This Court is
therefore required to "engage in an exacting review of
the entire record to determine if the evidence is . . .
sufficient to support the termination of parental
rights." Id. at 500. "[I]nvoluntary
termination statutes are strictly construed in favor of the
parent." In re S.K.A., 236 S.W.3d 875, 900
(Tex. App -Texarkana 2007, pet. denied) (quoting
Holick, 685 S.W.2d at 20).
terminate parental rights of any parent, the trial court must
find, by clear and convincing evidence, that such parent is
guilty of at least one statutory ground for termination and
that termination is in the child's best interest. Tex.
Fam. Code Ann. § 161.001 (West Supp. 2016); In re
E.N.C, 384 S.W.3d 796, 798 (Tex. 2012). "Clear and
convincing evidence" is that "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
2014); see In re J.O.A, 283 S.W.3d 336, 344 (Tex.
2009). This standard of proof necessarily affects our review
of the evidence.
legal sufficiency review, we consider all the evidence in the
light most favorable to the findings to determine whether the
fact-finder reasonably could have formed 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) (per
curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex.
App-Texarkana 2011, no pet.). We assume the trial court,
acting as fact-finder, resolved disputed facts in favor of
the finding, if a reasonable fact-finder could do so, and
disregarded evidence that the fact-finder could have
reasonably disbelieved or the credibility of which reasonably
could be doubted. J.P.B., 180 S.W.3d at 573.
review of factual sufficiency, we give due consideration to
evidence the trial court could have reasonably found to be
clear and convincing. In re H.R.M., 209 S.W.3d 105,
109 (Tex. 2006) (per curiam). We consider only that evidence
the fact-finder reasonably could have found to be clear and
convincing and determine "whether the evidence is such
that a fact[-]finder could reasonably form a firm belief or
conviction about the truth of the . . . allegations."
Id. (quoting In re C.H., 89 S.W.3d 17, 25
(Tex. 2002)); In re J.F.C, 96 S.W.3d 256, 264, 266
(Tex. 2002). "If, in light of the entire record, the
disputed evidence that a reasonable fact-finder could not
have credited in favor of the finding is so significant that
a fact-finder could not reasonably have formed a firm belief
or conviction, then the evidence is factually
insufficient." J.F.C., 96 S.W.3d at 266.
"[I]n making this determination, " we must
undertake "an exacting review of the entire record with
a healthy regard for the constitutional interests at
stake." A.B., 437 S.W.3d at 503 (quoting
C.H., 89 S.W.3d at 26).
the profound constitutional interests at stake in a
proceeding to terminate parental rights, "the rights of
natural parents are not absolute; protection of the child is
paramount." In re A.V., 113 S.W.3d 355, 361
(Tex. 2003) (quoting In re J. W.T., 872 S.W.2d 189,
195 (Tex. 1994)); see In re M.S., 115 S.W.3d 534,
547 (Tex. 2003). "A child's emotional and physical
interests must not be sacrificed merely to preserve parental
rights." In re C.A.J., 459 S.W.3d 175, 179
(Tex. App.-Texarkana 2015, no pet.) (citing C.H., 89
S.W.3d at 26). (1) On Appeal, Terri Does Not Challenge
Termination Grounds (D) and (E)
one predicate finding under Section 161.001(b)(1) is
necessary to support a judgment of termination when there is
also a [sustainable] finding that termination is in the
child's best interest." In re O.R.F., 417
S.W.3d 24, 37 (Tex. App.-Texarkana 2013, pet. denied)
(quoting A.V., 113 S.W.3d at 362); In re
K.W., 335 S.W.3d 767, 769 (Tex. App.-Texarkana 2011, no
pet.)); see In re N.R., 101 S.W.3d 771, 775 (Tex.
App.-Texarkana 2003, no pet.). Assuming a valid best-interest
finding, when the trial court finds more than one predicate
ground for termination, we will affirm if any one ground is
supported by sufficient evidence. In re K.W., 335
S.W.3d 767, 769 (Tex. App.-Texarkana 2011, no pet.).
case, Terri makes a general challenge to the sufficiency of
the evidence supporting termination, but does not
specifically challenge any of the grounds. Broadly
interpreting her brief, we find Terri's challenge to the
sufficiency of the evidence supporting the trial court's
findings does not address the evidence as to grounds (D) and
(E). See Tex. Fam. Code Ann. §
161.001(b)(1)(D), (E). Since Terri makes no challenge to the
trial court's findings with respect to grounds (D) and
(E), it is unnecessary to review the sufficiency of the
evidence as to the predicate grounds for terminating
Terri's parental rights. See K.W., 335 S.W.3d at
769; A.V., 113 S.W.3d at 362.
Sufficient Evidence Supports the Finding that Terminating
Terri's Parental Rights Was in J.L.G.'s Best
evidence here showed that, in 2013, Terri had another child,
C.L., removed by TDFPS when Terri overdosed on
methamphetamine and went to the emergency room. Terri did not
complete her service plan in that case and did not regain
custody of C.L. Terri's grandmother was named permanent
managing conservator of C.L. in 2015. Kristyn Anderson, a
caseworker for Child Protective Services (CPS), testified
that J.L.G. was born June 6, 2015, and was removed from Terri
September 9, 2015, as a result of drugs and domestic
violence. Anderson testified that Terri admitted that she had
been using drugs and was a victim of domestic violence. Terri
also admitted using drugs during both of her pregnancies.
Anderson also testified that Terri has been incarcerated
during the entire pendency of this case. She explained that
Terri had been on four years' community supervision for
forgery, which was revoked in September 2015 as a result of
Terri's continued drug use. In October 2015, Terri was
sent to state jail and SAFP. Anderson testified that, after
completing SAFP, Terri went to a halfway house in May 2016,
but left and was subsequently sentenced to serve fourteen
months in state jail. She testified that, if Terri had not
left the halfway house, she could have been released in
also testified that Terri had a court-ordered service plan
that required her to undergo a psychological evaluation, take
random drug testing, complete a drug assessment and treatment
program, and take parenting classes. She said that Terri had
the opportunity in her facility to take parenting classes,
complete drug treatment, and obtain individual counseling.
Terri did not obtain counseling or a psychological
evaluation, and, since she left her halfway house, she did
not complete her drug treatment. Although Terri claimed to
have taken parenting classes, she never provided Anderson
with a certificate of completion. Anderson also testified
that the case had been extended in June 2016, because she was
then in the halfway house and was supposed to be released
August 23, 2016. She agreed that, if Terri had followed the
halfway house rules, she would have been released and would
have been able to work all of her services. In addition, she
testified that Terri had not visited J.L.G. during the case
and would have been able to visit him if she had not left the
opined that it is in the best interest of J.L.G. that
Terri's parental rights be terminated, since she has
demonstrated a lack of stability and an incapacity to remain
drug-free over a period of three years and has not
demonstrated an ability to parent or to provide a safe,
stable, and drug-free home for J.L.G. She also testified that
J.L.G. has been in the care of Terri's aunt and uncle,
Jamie and Doug, that he has done very well under their care,
that he is well adjusted, and that he is bonded to their
entire family. She opined that it would be traumatic for
J.L.G. to be removed from Jamie and Doug, since they are the
only family he has known and since J.L.G. has no relationship
with either Terri or Cal.
admitted that, in 2012, she had received deferred
adjudication on a forgery charge, which was subsequently
adjudicated when she tested positive for methamphetamine use.
She also testified that she knew using drugs was a violation
of her community supervision and that she would test positive
if she used drugs, but did it anyway. On October 15, 2015,
she was sent to a SAFP facility. She admitted that she
received a fourteen-month sentence when she absconded from
the halfway house and that, if she had not absconded, she
would have been released and could have worked her services.
She admitted that she did not complete her psychological
evaluation and counseling and had failed to establish a
stable home environment, all as a result of her own conduct.
She also admitted that, since she did not complete her time
at the halfway house, she did not complete her drug treatment
program. She testified that she is projected to be released
in August 2017.
explained that she had been given a twenty-four-hour pass
from her halfway house in Fort Worth and had come to Paris.
On her way back to Fort Worth, she experienced car trouble
and called to let them know she would be late. After being
told that she would have to talk with her community
supervision officer before she could return, Terri waited two
days before calling her community supervision officer, who
got her community supervision revoked as a result. She waited
another four days before turning herself in to her community
supervision officer. She said that, during those four days,
she visited with her mother and with C.L., but that she did
not try to visit J.L.G.
testified that she is currently in state jail, is taking GED
and parenting classes, and is participating in the Changes
and Celebrate Recovery programs. She said that she is trying
to change her life and behavior and does not want drugs in
her life. She agreed with Jamie and Doug taking care of
J.L.G. until she got out of jail, but did not want them to
adopt him, or to have her parental rights terminated. She
also was agreeable with Jamie and Doug being named permanent
managing conservators if she could have visitation. She was
confident she could find work with her GED. She also
testified that she would not get involved with Cal until he
can prove he can get off drugs and better himself. She
admitted, however, that she did not know if Cal is still
involved with drugs.
testified that her husband, Doug, is Terri's uncle.
J.L.G. has been in their care for fourteen months, and he has
bonded with their family, especially their daughter, Esther,
who is nine months older. She testified that, when J.L.G.
first came into their care, he appeared to be going through
drug withdrawals and that he is still four months behind
developmentally. She opined that J.L.G. would regress if he
was not with them. In her opinion, it is in his best interest
to terminate the parental rights of both parents because
J.L.G. needs stability, which he would have with her and her
family since he is already bonded with them. She opined that
stability could only be maintained by adoption. She did not
think it would be beneficial to wait another year for Terri
to rehabilitate. She acknowledged that she does not know
Terri that well, but that Terri had told her about one
instance of domestic violence. She also acknowledged that she
does not know Cal.
Nickerson also testified. She opined that termination of
Terri's parental rights is in J.L.G.'s best interest,
since Terri has made no effort to change and has exhibited
the same behavior in both of her CPS cases. She said that
Terri had been given extensions in both cases, yet had not
completed her services in either of them. She also testified
that Terri struggled to maintain a home for herself and that
Terri had been through community supervision, SAFP, and two
CPS programs to try to get her off of drugs and modify her