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L. R. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

June 21, 2018

L. R., Appellant
Texas Department of Family and Protective Services, Appellee


          Before Justices Puryear, Pemberton, and Bourland


          Cindy Olson Bourland, Justice

         L.R., herein "Lori, " appeals from the termination of her parental rights to her daughter "Abby, " who was almost three at the time of the final hearing.[1] We affirm the court's order of termination.

         Standard of Review

         A trial court may terminate a parent's rights to her child if clear and convincing evidence shows that (1) a parent has committed conduct that amounts to a statutory ground for termination and (2) termination of her rights would be in the child's best interest. Tex. Fam. Code § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). In reviewing the legal sufficiency of the evidence in such a case, we credit evidence that supports the determination if a reasonable factfinder could have done so and disregard contrary evidence unless a reasonable factfinder could not have done so. In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We "should not disregard undisputed facts that do not support" the determination, and "even evidence that does more than raise surmise and suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true." K.M.L., 443 S.W.3d at 113. In evaluating factual sufficiency, we view the entire record and uphold the finding unless the disputed evidence that could not reasonably have been credited in favor of a finding is so significant that the factfinder could not reasonably have formed a firm belief or conviction that the Department's allegations were true. In re A.B., 437 S.W.3d 498, 502-03 (Tex. 2014). We defer to the factfinder's reasonable determination on issues of credibility that involve an evaluation of appearance or demeanor. J.P.B., 180 S.W.3d at 573; see A.B., 437 S.W.3d at 503 (reviewing court must defer to "factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses").

         A factfinder's best-interest determination is reviewed in light of the non-exhaustive list of considerations set out in Holley v. Adams: the child's wishes, if the child is of an appropriate age to express such wishes; the child's present and future emotional and physical needs; present and future emotional and physical danger to the child; the parenting abilities of the individuals seeking custody; programs available to assist those people to promote the child's best interest; plans for the child by the people seeking or agency seeking custody; the stability of the home or proposed placement; the parent's acts or omissions that may indicate that the parent-child relationship is improper; and any excuse for the parent's acts or omissions. 544 S.W.2d 367, 371-72 (Tex. 1976). The State is not required to prove all of the Holley factors "as a condition precedent to parental termination, " and a lack of evidence about some does not "preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The need for permanence is the paramount consideration when determining a child's present and future physical and emotional needs. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.-Houston [14th Dist.] 2012, no pet.); Robert T. v. Texas Dep't of Family & Protective Servs., No. 03-12-00061-CV, 2013 WL 812116, at *12 (Tex. App.-Austin Mar. 1, 2013, no pet.) (mem. op.). A parent's rights may not be terminated merely because the child might be better off living elsewhere, but "a factfinder can consider that a child's best interest may be served by termination of parental rights so that adoption may occur rather than the impermanent foster-care arrangement that would result if termination were not ordered." Robert T., 2013 WL 812116, at *12.

         Factual Summary

         In June 2017, the Department filed its original petition for conservatorship over Abby, who was born in March 2015. The Department sought conservatorship after receiving a report that Abby had been physically abused by "Ginny, " Lori's girlfriend, and neglected by Lori. Abby was removed from Lori's care and placed with Wanda, Abby's maternal grandmother, where she remained throughout the proceeding. Lori was ordered to participate in random drug testing, provide proof of employment, participate in parenting classes, complete a drug and alcohol assessment and follow all resulting recommendations, complete a psychological evaluation and follow all resulting recommendations, participate in therapy, and show herself able to provide a safe and stable home for Abby.

         The trial court held a final hearing in this case on January 10, 2018. Lori did not appear. After the witnesses were sworn, Department caseworker Amy Brown stated that although Lori had attended the last hearing before the trial court in November, she did not attend the final permanency conference held after that hearing at the Department's offices. Brown said:

So mom was supposedly on her way, but she never showed up. We tried to call her on the phone so she could participate by phone. The problem is that I have two drug tests on her and five times that she's went to therapy. That's it. That's all I got. And I even spoke to Deb Taber, who is her therapist who she was actually enjoying seeing in therapy, and she even recommends that we terminate her rights and give grandma the adoption of this child so that grandma understands the severity of keeping this child safe.

         Brown explained that another caseworker was initially assigned to the case and that Brown took over in early September 2017 when the original caseworker left the Department. Since then, Brown testified, she had made contact with Lori "almost once a month until last month." Brown tried to get in touch with Lori in December 2017 but did not make contact with her "because she was in between homes and not answering her phone and that sort of thing."

         Brown testified that in her conversations with Lori, Lori never disputed the accuracy of the information provided in the Department's affidavit supporting its petition for conservatorship. Brown did not testify directly about the allegations in the removal affidavit, nor was the affidavit introduced into evidence. However, Brown testified that Lori did not deny the allegations in the affidavit, including allegations that Abby was found in a hotel room, that Lori had been arrested for prostitution, that Abby had thrush and lice upon her removal, that there were concerns about malnutrition upon her removal, and that an unknown man was asleep in a bed in the hotel room where Abby was found. Brown also said Lori did not deny that Abby had been burned by a cigarette, but she explained to Brown that it happened accidentally when Abby "bumped into the cigarette."

         Brown testified that Lori was given a service plan, which required three clean drug tests before Lori could have visitation with Abby. Lori took two drug tests in September, both of which were negative, but when Brown asked her to take a hair follicle test in September, she "relayed to me that she would fail and that she would just rather do it through UAs and then has not been back." Brown testified that Lori had missed twenty-four drug tests and that Lori had "had no contact with the child" since her removal in June 2017. Lori had not completed the required parenting class, nor had Brown received any indication that Lori had participated in "intensive outpatient" as recommended by her drug and alcohol assessment. Brown said that in September, she had visited Lori's apartment and that although the apartment appeared clean, she had concerns about the stability of Lori's living arrangements because it was a month-to-month lease and Brown had concerns about how Lori was paying her rent when "she does not have a consistent form of income." Brown also stated that Lori ...

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