Court of Appeals of Texas, Sixth District, Texarkana
Submitted: March 7, 2019
Appeal from the County Court at Law No. 2 Gregg County, Texas
Trial Court No. 2017-2055-CCL2
Morriss, C.J., Burgess and Stevens, JJ.
R. MORRISS, III CHIEF JUSTICE.
petition of the Texas Department of Family and Protective
Services (Department), Matt's parental rights to
were terminated on multiple statutory grounds. On appeal, Matt
challenges the legal and factual sufficiency of the evidence
to support the various findings of the statutory grounds for
termination and the best-interest finding. He also
asserts that, because of his poverty, applying statutory
grounds (F), (N), and (O) to him violated the Equal
Protection and Due Process Clauses of the United States
Constitution,  and the Due Course of Law Clause of the
Texas Constitution. We affirm the judgment of the trial court,
because (1) sufficient evidence supports termination based on
ground (O), (2) sufficient evidence supports the
best-interest finding, and (3) Matt has not shown that ground
(O), as applied to him, is unconstitutional.
Sufficient Evidence Supports Termination Based on Ground
natural right existing between parents and their children is
of constitutional dimensions." Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). It is a fundamental right of
parents 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). Therefore, we are 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 the parental rights of any parent, the trial court
must find, by clear and convincing evidence, that such parent
has committed 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. 2018); 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.
factual sufficiency review, 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. at 108 (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).
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. K.W., 335 S.W.3d
record shows that L.G., who was in the sole custody of her
mother, Kay, was removed from the home because both L.G. and
Kay tested positive for marihuana and cocaine. Kay admitted
to an ongoing use of marihuana, and cocaine use for four
months. In addition, it was found that Kay would leave L.G.
with a man she had known for only a few months and who also
time of L.G.'s removal, Matt had not seen Kay and L.G.
for about seven months. He consistently denied any knowledge
of Kay's drug use throughout the case. Before and during
the pendency of the case, Matt lived in Cameron, Texas. As a
result, the Department provided him with a courtesy
caseworker located near Cameron.
evidence also showed that Matt had visual and auditory
problems, a considerable degree of disability, and depression
and post-traumatic stress disorder. Matt spent nine and
one-half years in prison for burglary, and he was released in
1999. He had a twenty-six-year-old daughter and three teenage
children who lived with their mother in San Antonio. Matt
estimated that he was $25, 000.00 behind on his child support
obligations. Although Matt claimed to have contact with his
other children, his psychologist testified that their
mother's Facebook postings contradicted that claim. Matt
also claimed that he was a very committed and involved
parent, but his psychologist opined that Matt's lack of
contact with L.G. during the pendency of this case
contradicted that claim and that Matt was a highly
questionable parental resource.
Department and Matt agreed to a family service plan (FSP) on
November 15, 2017. The Department reviewed it with him by
telephone, and his attorney, who also attended, signed the
FSP on Matt's behalf. Under the plan, Matt was required
to participate in family visitations, maintain regular
contact with his caseworker, maintain safe housing, undergo a
psychological evaluation, participate in individual
counseling, take parenting classes, complete his FSP, and
other things. Matt acknowledged that it was explained to him
at that time that, if he did not complete the services set
forth in the FSP, he could lose his parental rights. The
trial court approved the FSP and made it an order of the
court on December 19, 2017. Matt signed the FSP that same
Department's caseworker, Carla Carpenter, testified that
Matt had not completed his counseling or parenting classes
and had not provided safe housing. She testified that the FSP
allowed visitation one time each month and that the
Department had made arrangements for Matt and L.G. to meet at
a location halfway to Cameron. However, the last time Matt
had visited L.G. was in April 2018,  and the last time Carpenter
had tried to arrange a visit was in August, but she never
received any confirmation from Matt that he was available.
also testified that L.G. needs special services, such as
occupational and physical therapy, that are essential to her
emotional and physical development. L.G. also has extensive
medical and medication needs. Carpenter testified that Matt
had not contacted her to ask about any of L.G.'s medical
or therapy needs. She also testified that both Kay and Matt
knew that L.G. had severe medical problems since birth, but
that they had not allowed her to have the medical care and
therapies she needs. Carpenter testified that the Department
was seeking termination of Matt's parental rights mainly
for his failure to complete his service plan and that it was
in the best interest of L.G.
cross-examination, Carpenter acknowledged that Matt had never
tested positive for drugs and that drugs were not a concern.
She also testified that Matt had told her that he was
dependent on his roommate, who had a single cab pickup, for
Taylor, Matt's courtesy caseworker, testified that Matt
lived in a one-bedroom apartment with a roommate. The
roommate slept in the living area, and Matt and L.G. would
sleep in the bedroom. Matt had clothes, toys, and a separate
bed for L.G. Taylor had contact with Matt until August.
testified that the Department had made all the necessary
referrals for services. She also testified that Matt had
missed three drug tests, had not completed his counseling or
his parenting classes, and had not visited L.G. since April.
In August, she talked to Matt about employment, and he said
he was not working because his doctor said he could not. When
she asked him to provide a note from his doctor, he said he
would if his primary caseworker requested it. Taylor
testified that Matt had not provided her information showing
he could financially provide for L.G., but that he had also
told her that he was pursuing a disability claim. Matt also
told her that, if L.G. were placed in his care, he would be
awarded an apartment at the Housing Authority and that he and
L.G. would qualify for Medicaid. Taylor also testified that
Matt claimed to have a problem getting in contact ...