Court of Appeals of Texas, Sixth District, Texarkana
IN THE INTEREST OF K.D., C.D., AND C.F., III, CHILDREN
Submitted Date: November 13, 2017
Appeal from the 115th District Court Marion County, Texas
Trial Court No. 16-00038
Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by
Chief Justice Morriss
R. MORRISS, III CHIEF JUSTICE
establishing a long-standing pattern of bad choices and drug
and physical abuse, Mother had her parental rights to K.D., C.D.,
and C.F., III, terminated in a jury trial in Marion
County. In this accelerated appeal, Mother argues
that the evidence was factually insufficient to support
termination on grounds D, E, N, and O under the Texas Family
Code and that the evidence was legally and factually
insufficient on grounds M and P. See Tex. Fam. Code.
Ann. § 161.001(b)(1)(D), (E), (M), (N), (O), (P) (West
Supp. 2017). She also complains that the evidence was legally
and factually insufficient to support the jury's finding
that termination of her parental rights was in the
children's best interests and that, because the jury
charge failed (a) to include an independent finding that
termination was in the children's best interests and (b)
to require the jury to identify the ground(s) on which
termination was based, the jury charge was legally defective.
Consequently, Mother claims that she was denied due process
affirm the trial court's order because (1) sufficient
evidence supports at least one predicate ground for
termination, (2) sufficient evidence supports the
best-interest finding, and (3) Mother's complaint
regarding jury charge error was not preserved for review.
Sufficient Evidence Supports at Least One Predicate
Ground for Termination
relationship with C.F., Jr., her more recent husband and the
father of one of the children involved here, was marred by
domestic violence. As a result, Mother filed assault charges
against C.F., Jr., in mid-2015, but ultimately dropped those
charges when C.F., Jr., who was on parole, agreed to
counseling. In October 2015, C.F., Jr., choked Mother while
he was holding C.D. Mother asked her daughter, K.D., to call
9-1-1 on that occasion. In December 2015, C.F., Jr., punched
Mother in the face "a couple of times." Although
the children were outside in the truck during this incident,
K.D. again called 9-1-1 to report the assault.
thereafter C.F., Jr., was jailed-for the reported incidents
of domestic violence-and was released in February 2016. On
his release from jail, C.F., Jr., returned to the family home
with Mother, K.D., C.D., and C.F., III. In June 2016, after
the children were in the Department's custody, Mother and
C.F., Jr., "punched each other a few times" during
a counseling session. Although Mother acknowledged that her
children would be emotionally disturbed by being in the
presence of abusive conduct, Mother was not willing to give
up on her marriage.
Jr., also used drugs and had a history of criminal
convictions. In the summer of 2016, C.F., Jr., tested
positive for methamphetamine. During this same time frame,
C.F., Jr., was involved in a theft scheme. When Mother
discovered C.F., Jr.'s, involvement in the theft scheme
and confronted him about it, C.F., Jr., became angry and hit
Mother, breaking her nose and causing an orbital fracture. As
a result of this incident, C.F., Jr., was again jailed and
was released in September 2016. The evidence showed that C.F.,
Jr., had a long-term methamphetamine addiction, dating back
to the age of sixteen. Mother left the children in the care
of C.F., Jr., when she was working.
Department initially made contact with Mother in December
2015, after reports of domestic violence in the home. After
the Department investigator determined that C.F., Jr., was in
jail, it took no further action. In January 2016, the
Department was contacted with a report of Mother's
physical abuse of her elderly father and a second report that
Mother took C.F., III, to the emergency room because he had
possibly swallowed four Alprazolam. There were concerns at that
time that Mother was using methamphetamine because she had
sores all over her body. When the Department investigator
contacted Mother, Mother refused drug testing. In February
2016, Mother told a Department investigator that C.F., Jr.,
was in jail for domestic violence, but she intended to
reunite with him. Mother also indicated that she had gotten
into an altercation with her sister-in-law and was injured as
days later, Mother contacted the Department to advise that
she had moved to Tyler, that she was going to turn herself in
on a warrant for her arrest for abuse of her elderly father,
and that the children would be with Shelacy
March 11, 2016, the Department received the results of
Mother's drug test, indicating positive results for
marihuana and methamphetamine. Mother admitted during
counseling that, in addition to marihuana and
methamphetamine, she had used cocaine in the past. On March
16, 2016, the children were removed from the
home. After the removal, drug tests were
performed on the children. C.F., III, tested positive for
methamphetamine, amphetamine, cocaine, and marihuana. The
evidence indicates that one of the other two children tested
positive as well, although the record is not clear regarding
which child, in addition to C.F., III, was exposed.
thereafter, the trial court issued a temporary order
requiring Mother, among other things, to perform certain
tasks in order to regain possession of her children. The
temporary order required Mother to complete a psychological
evaluation and drug and alcohol assessment, submit to drug
testing as requested,  complete a parenting course, and
participate in counseling, to include domestic violence
counseling and anger management.
underwent a psychological evaluation and substance abuse
assessment. The psychological evaluation indicated that
Mother presented with a personality disorder, major
depressive disorder, and post-traumatic stress. Mother was
prescribed medications for some of her diagnoses, but she
does not take the prescribed medications.
result of the psychological evaluation, Mother was ordered to
attend counseling. At that time, she was living in Magnolia,
Arkansas, and counseled with Pastor Ron Owens. Mother
completed an anger management course but was ordered to take
the course again, after she and her husband engaged in a
physical confrontation during a counseling
session. As a result of the substance abuse
assessment, Mother was to receive outpatient drug treatment.
Although she did not receive such treatment, Mother testified
that she attended Celebrate Recovery in Magnolia, although
she did not provide any documentation of her
attendance. Mother was also ordered to pay child
support in the amount of $200.00 per month beginning July 1,
2016. Mother has failed to make any child support payments.
last time Mother visited with her children was in September
2016. Mother's visitation was terminated by court order
in October 2016 after she moved to Magnolia.
the commencement of this case, Mother's parental rights
were terminated with respect to her first child, T.D.M., in
Arkansas. Mother admitted that she did not complete her
services in the Arkansas case and that she had a drug problem
at that time. Mother testified that she no longer has a drug
problem. Hebert, a long-time friend of
Mother's, testified that Mother has used methamphetamine.
Between 2009 and 2014, Mother has been involved in fourteen
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, the 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).
order to terminate parental rights, the trial court must
find, by clear and convincing evidence, that the parent has
engaged in 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. 2017); 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 could reasonably 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