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In re Z.O.

Court of Appeals of Texas, Second District, Fort Worth

September 7, 2017

IN THE INTEREST OF Z.O.

         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 15-10492-158

          PANEL LIVINGSTON, C.J.; WALKER and KERR, JJ.

          MEMORANDUM OPINION [1]

          ELIZABETH KERR JUSTICE

         After a jury trial, the trial court terminated the parental rights of A.G. to her daughter Z.O.[2] The jury found that (1) A.G. had knowingly placed or knowingly allowed Z.O. to remain in conditions or surroundings that endangered Z.O.'s physical or emotional well-being (Tex. Fam. Code Ann. § 161.001(b)(1)(D) (West Supp. 2016)); (2) A.G. had engaged in conduct, or knowingly placed Z.O. with persons who engaged in conduct, that endangered Z.O.'s physical or emotional well-being (Tex. Fam. Code Ann. § 161.001(b)(1)(E)); and (3) terminating the parent-child relationship between A.G. and Z.O. was in Z.O.'s best interest (Tex. Fam. Code Ann. § 161.001(b)(2)). On appeal, A.G. attacks the legal and factual evidentiary sufficiency on each of those three findings. We affirm.

         EVIDENCE

         For the stated reasons of escaping domestic violence and police brutality, A.G. left Illinois in August 2015 with two of her three daughters, [3] one of whom was Z.O., to start a new life in Texas. She left for Texas having no job and no plan other than to move in with her father, a man with whom she acknowledged not having a close relationship.

         By December 2015, A.G.'s father had kicked them all out of his house, and A.G. and her daughters were homeless. So A.G. affirmatively sought the aid of the Texas Department of Family and Protective Services, which initially offered A.G. services that would have permitted her and her daughters to remain together or would have allowed her daughters to remain with family. But within a week, A.G. opted to place her children in foster care.

         In compliance with A.G.'s wishes, the Department placed the two girls in foster care. Although the youngest daughter's father later took her back to Illinois, Z.O.'s father declined any involvement in the case, leaving Z.O. in foster care.[4]There, it quickly became evident that Z.O. had severe behavioral issues. Placements in a basic-needs foster home, a moderate-needs foster home, and a specialized-needs foster home all failed.

         The trial court ordered services, and A.G. engaged in them and found rent-free housing at the Wheeler House. In October 2016, the trial court placed Z.O. back with A.G in a monitored return. Yet within five weeks, A.G. went to the Department's offices and again asked the Department to put Z.O. into foster care.

         Once Z.O. was back in foster care, the Department proceeded to a jury trial to terminate A.G.'s parental rights. At trial, it was undisputed that A.G. and Z.O were very much mutually bonded. On the fifth day of trial, the jury nevertheless rendered a verdict terminating their parent-child relationship.

         Conspicuously absent from the evidence were any alcohol abuse, drug abuse, physical abuse, sexual molestation, or neglect; the State proceeded on emotional abuse and on Z.O.'s overall best interest. Although the evidence lacked the more easily recognized forms of emotional abuse such as intentional cruelty or vindictiveness, the evidence did show that the abuse was the byproduct of the manner in which A.G. functioned as a person and as a parent.

         After a psychological evaluation, A.G. was diagnosed as having severe depression, dependent personality features, and narcissistic personality features. The clinical psychologist testified that depression drains a person of energy and motivation, making it hard to function. A "dependency" diagnosis meant that the person felt incapable of taking care of herself and her responsibilities and needed someone else to take care of her and assume her responsibilities. "Narcissism" meant the person was self-centered, lacked empathy for others, and could become enraged when encountering criticism or disagreement.

         Consistent with those diagnoses, concerns with A.G.'s anger and her ability to control it surfaced. In 2012, Illinois CPS had investigated A.G. for over-disciplining her oldest child by spanking her. When she herself was a child, A.G. was forced to leave a foster home after she beat up her foster mother. Within the two years preceding trial, A.G. acknowledged getting in a fight with one of her cousins and getting fired after beating up a co-worker. Adding to the concern was that A.G. thought spanking was the only way to "get through to" Z.O.

         The clinical psychologist described A.G. as using poor judgment. All through A.G.'s adult life, unemployment and housing instability were constant companions. Years earlier, in 2005 in Illinois, A.G. had sought CPS's help to care for her child (at the time she had only one) while she established stability.[5] In December 2015, A.G. was still seeking stability, but by that year she had two additional children.

         STANDARD OF REVIEW

         Generally

         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. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391- 92 (1982)). We strictly scrutinize termination proceedings and strictly construe involuntary-termination statutes in the parent's favor. In re E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 563; 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), § 161.206(a); E. N.C. , 384 S.W.3d at 802. 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); see also E. N.C. , 384 S.W.3d at 802. 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 party seeking termination must establish, by clear and convincing evidence, that the parent's actions satisfy just one of the many grounds listed in family code section 161.001(b)(1) and also that termination is in the child's best interest under section 161.001(b)(2). 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). Both elements must be established; that is, termination may not be based solely on the child's best interest as determined by the ...


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