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In re J.L.G.

Court of Appeals of Texas, Sixth District, Texarkana

April 6, 2017


          Submitted: March 16, 2017

         On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 84799

          Before Morriss, C.J., Moseley and Burgess, JJ.


          Josh R. Morriss III Chief Justice.

         After a bench trial in October 2016, Terri's and Cal's parental rights to their child, J.L.G., [1]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[2] 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).

         "The 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).

         To 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.

         In our 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.

         In our 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).

         Despite 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)

         "Only 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.).

         In this case, Terri makes a general challenge to the sufficiency of the evidence supporting termination, but does not specifically challenge any of the grounds.[3] 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.

         (2) Sufficient Evidence Supports the Finding that Terminating Terri's Parental Rights Was in J.L.G.'s Best Interest

         The 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.[4] 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 August 2016.

         Anderson 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 halfway house.

         Anderson 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.

         Terri 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.

         Terri 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.

         Terri 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.

         Jamie 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.

         Deanna Nickerson also testified.[5] 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 behavior, ...

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