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In re L.G.

Court of Appeals of Texas, Sixth District, Texarkana

April 10, 2019

IN THE INTEREST OF L.G., A CHILD

          Submitted: March 7, 2019

          On Appeal from the County Court at Law No. 2 Gregg County, Texas Trial Court No. 2017-2055-CCL2

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

          MEMORANDUM OPINION

          JOSH R. MORRISS, III CHIEF JUSTICE.

         On the petition of the Texas Department of Family and Protective Services (Department), Matt's parental rights to L.G.[1] were terminated on multiple statutory grounds.[2] On appeal, Matt challenges the legal and factual sufficiency of the evidence to support the various findings of the statutory grounds for termination[3] and the best-interest[4] 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, [5] and the Due Course of Law Clause of the Texas Constitution.[6] 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.

         (1) Sufficient Evidence Supports Termination Based on 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). 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).

         To 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.

         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 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).

         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).

         "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. K.W., 335 S.W.3d at 769.

         The 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 smoked marihuana.

         At the 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.

         The 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.

         The 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 day.

         The 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, [7] 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.

         Carpenter 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.

         On 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 transportation.

         Lynsey 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.

         Taylor 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 ...


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