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In re C.R.

Court of Appeals of Texas, Seventh District, Amarillo

April 16, 2019

IN THE INTEREST OF C.R., A.R., AND I.R., CHILDREN

          On Appeal from County Court at Law Number 1 Randall County, Texas Trial Court No. 6985-L1; Honorable Jack M. Graham, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          PATRICK A. PIRTLE, JUSTICE

         Appellants, E.R. and R.R., appeal the trial court's order terminating their parental rights to their children, C.R., A.R., and I.R.[1] The children's mother, E.R., presents three issues questioning the legal and factual sufficiency of the evidence to support the two statutory grounds for termination as well as the trial court's best interest finding. By separate brief, the children's father, R.R., presents two issues challenging the legal and factual sufficiency of the evidence to support termination under the two statutory grounds.[2] We affirm.

         Background

         The parents and their children have been involved with the Texas Department of Family and Protective Services since 2007. In 2010, the parents and the Department entered into an Agreed Final Order in Suit Affecting the Parent-Child Relationship involving C.R. The children's ages range from ten to fourteen with C.R. being the oldest of the three.[3] C.R. has long-term special needs. He takes psychotropic medications that require monitoring and has anger and behavioral issues. A.R. also has anger issues and impulsiveness that is controlled with medication, and I.R. has dyslexia and psychiatric issues.

         In May 2017, the family was involved in a family-based service case in which the court ordered them to participate in various services. Months later, in September, an allegation that I.R. went to school hungry and wearing a coat with urine on it resulted in an intake report. Those allegations, coupled with the Department's concern that the parents were abusing drugs, resulted in removal of the children.[4] The family-based service plan developed in two separate cases: one case to modify the prior 2010 order involving C.R., which included the possibility of termination of parental rights and a second case which was initiated as a pleading in intervention regarding the two younger children, by which the Department also sought termination as an alternative.[5]

         The trial court appointed the Department as temporary managing conservator of all three children in October 2017. The trial court's temporary orders included a paragraph notifying each parent of certain actions required of them in order to obtain the return of their children and admonished them that full compliance was required. In May 2018, the Department determined that reunification goals were unsuccessful and proceeded with termination of parental rights. The Department's supervisor explained that once the goal shifted from reunification to termination, the Department focused on participation by the parents in their services and other circumstances as a condition precedent to again considering reunification.

         At the time of the final hearing in November 2018, the children were placed as follows: C.R. was placed in a residential treatment center in Houston, A.R. in a group home in Dallas, [6] and I.R. with a foster family in Dallas.[7] Of the several caseworkers the family had throughout the proceedings, none testified at the final hearing. Instead, the sole witness for the Department was one of its supervisors. E.R. and R.R. testified on their own behalf. At the conclusion of the testimony, the attorney ad litem for the children recommended termination of parental rights and the trial court took the case under advisement.

         Subsequently, the trial court signed an order terminating E.R. and R.R.'s parental rights for constructively abandoning their children, who had been in the Department's care for not less than six months, after the Department had made reasonable efforts to return the children, the parents had not regularly visited or maintained significant contact with the children, and they had not demonstrated the ability to provide a safe environment. Tex. Fam. Code Ann. § 161.001(b)(1)(N) (West Supp. 2018). The trial court also found that both parents had failed to comply with the provisions of a court order that specifically established the actions necessary for them to obtain the return of their children who had been in the Department's care for not less than nine months as a result of the children's removal for abuse or neglect. § 161.001(b)(1)(O) (West Supp. 2018). The trial court further found that termination of parental rights was in the children's best interests. § 161.001(b)(2) (West Supp. 2018). The court then ordered termination of the parental rights of both parents. Both parents seek to overturn that termination order.

         Applicable Law

         The Texas Family Code permits a court to terminate the relationship between a parent and a child if the Department establishes one or more acts or omissions enumerated under section 161.001(b)(1) of the Code and that termination of that relationship is in the best interest of the child. See § 161.001(b)(1), (2); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). The burden of proof is by clear and convincing evidence. § 161.206(a) (West 2014). "'Clear and convincing evidence' means the measure or 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." § 101.007 (West 2014).

         Standard of Review

         The natural right existing between parents and their children is of constitutional magnitude. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination proceedings are strictly construed in favor of the parent. In the Interest of E.R., 385 S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are not absolute, and it is essential that the emotional and physical interests of a child not be sacrificed merely to preserve those rights. In the Interest of C.H., 89 S.W.3d 17, 26 (Tex. 2002). The Due Process Clause of the United States Constitution and section 161.001 of the Texas Family Code require application of the heightened standard of clear and convincing evidence in cases involving involuntary termination of parental rights. See In the Interest of E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012); In the Interest of J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).

         In a legal sufficiency challenge, we credit evidence that supports the verdict if reasonable jurors could have done so and disregard contrary evidence unless reasonable jurors could not have done so. In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014). However, the reviewing court should not disregard undisputed facts that do not support the verdict to determine whether there is clear and convincing evidence. Id. at 113. In cases requiring clear and convincing evidence, 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. Id. If, after conducting a legal sufficiency review, a court determines that no reasonable fact finder could form a firm belief or conviction that the matter that must be proven is true, then the evidence is legally insufficient. Id. (citing In the Interest of J.F.C., 96 S.W.3d at 266).

         In a factual sufficiency review, a court of appeals must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing. In the Interest of J.F.C., 96 S.W.3d at 266 (citing In the Interest of C.H., 89 S.W.3d at 25). We must determine whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the Department's allegations. In the Interest of J.F.C., 96 S.W.3d at 266. We consider whether disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. 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. Id.

         The clear and convincing standard does not mean that the evidence must negate all reasonable doubt or that the evidence must be uncontroverted. In the Interest of T.N., 180 S.W.3d 376, 382 (Tex. App.-Amarillo 2005, no pet.). The reviewing court must recall that the trier of fact has the authority to weigh the evidence, draw reasonable inferences therefrom, and choose between conflicting inferences. Id. Also, the trier of fact, as opposed to the reviewing body, enjoys the right to resolve credibility issues and conflicts within the evidence. Id. It may freely choose to believe all, part, or none of the testimony espoused by any particular witness. Id. at 382-83 (citing In the Interest of R.D.S., 902 S.W.2d 714, 716 (Tex. App.-Amarillo 1995, no writ)).

         A termination order will be upheld if the evidence is sufficient on any statutory ground relied on by the trial court. In the Interest of K.C.B., 280 S.W.3d 888, 894 (Tex. App.-Amarillo 2009, pet. denied). Although evidence presented may be relevant to both the statutory grounds for termination and best interest finding, each element must be established separately and proof of one element does not relieve the burden of proving the other. See In the Interest of C.H., 89 S.W.3d at 28.

         Section 161.001(b)(1)(N)

         Parental rights may be terminated under subparagraph N if the trial court finds that (1) a parent has constructively abandoned a child who has been in the permanent or temporary conservatorship of the Department for not less than six months, (2) reasonable efforts have been made to return the child, (3) the parent has not regularly visited or maintained significant contact with the child, and (4) the parent has demonstrated an inability to provide the child with a safe environment. See In re A.S., 261 S.W.3d 76, 88-89 (Tex. App.-Houston [1st Dist.] 2008, pet. denied). If there is insufficient evidence of any of the four elements, termination under subparagraph N fails. In re D.T., 34 S.W.3d 625, 633 (Tex. App.-Fort Worth 2000, pet. denied).

         Analysis

         By issue one of their respective briefs, E.R. and R.R. challenge the legal and factual sufficiency of the evidence to support termination under subparagraph N. The Department, however, offers no argument in response on this ground and relies solely on subparagraph O as the statutory ground supporting termination. Because only one statutory ground is required to support termination, we will evaluate the parties' arguments presented in issue two of their respective briefs pertaining to the legal and factual sufficiency of the evidence to support termination under subparagraph O. In light ...


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