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In re B.C.H.

Court of Appeals of Texas, Ninth District, Beaumont

May 2, 2019

IN THE INTEREST OF B.C.H.

          Submitted on March 13, 2019

          On Appeal from the 317th District Court Jefferson County, Texas Trial Cause No. C-225, 800

          Before McKeithen, C.J., Kreger, and Johnson, JJ.

          MEMORANDUM OPINION

          CHARLES KREGER Justice.

         This is an appeal from the termination of P.P.'s (Mother) parental rights to B.C.H.[1] In an involuntary private termination proceeding brought by the paternal grandparents, the trial court terminated Mother's parental rights, finding clear and convincing evidence of prohibited predicate acts under Texas Family Code sections 161.001(b)(1)(A), (B), (C), (D), (E) and (F), and that termination was in the best interest of the child.[2] See Tex. Fam. Code Ann. § 161.001(b)(1)(A)-(F) (West Supp. 2018).[3] The case was tried to the bench. In three issues on appeal, Mother contends: (1) the evidence is legally and factually insufficient to support the trial court's determination by clear and convincing evidence that grounds for involuntary termination exist under section 161.001(b)(1)(A)-(F); (2) the evidence is legally and factually insufficient to support the trial court's determination by clear and convincing evidence that termination was in the child's best interest; and (3) the trial court's termination order lacks material findings, is improper, unenforceable, void and unconstitutional. See id. We reverse the portion of the trial court's order terminating Mother's parental rights and render judgment for Mother.

         I. Background

         At the time of trial, B.C.H. was ten and a half years old. Except for approximately six months when he was two years old, B.C.H. has always lived with his paternal grandparents, where B.C.H.'s Father also resides.[4] Prior to the grandparents being appointed sole managing conservators of B.C.H., Mother indicated B.C.H. lived with her part of the time and went "back and forth" to the grandparents. While we have little facts in the record regarding the early years of the life of B.C.H., Mother testified during the first two years of his life, she lived with him at the grandparents' home and provided him with "his formula, his food, his clothing, everything."

         By way of an order in a suit to modify parent-child relationship ("SAPCR") dated September 15, 2014, the trial court appointed the paternal grandparents as the sole managing conservators of B.C.H. and appointed Mother and Father as possessory conservators with rights of visitation.[5] The original order provided Mother with regular visitation, but it prohibited Mother from removing B.C.H. from Jefferson County or a contiguous county without obtaining written permission from the grandparents. The order also provided that B.C.H. could not have any contact with Mother's boyfriend, J.Z., and that "[i]f the child is in the presence of [J.Z.] at any time, access to and possession of the child by [Mother] shall be suspended until further order of the Court."

         At the termination hearing, Grandmother confirmed that she felt it was in B.C.H.'s best interest that the court terminate Mother's parental rights. She testified that Mother had voluntarily left B.C.H. in her possession without expressing an intent to return, failed to provide adequate support during that time, and had remained away for a period of at least three months. Further, Grandmother testified that when B.C.H was a baby, this happened at least two or three times a year, and it was not uncommon to go months without seeing Mother. Grandmother indicated there were also periods where Mother remained away for at least six months. Grandmother stated that at the time of the termination hearing, Mother had left B.C.H. with her, had not provided support, and had remained away for a period of over six months. Grandmother testified that she had not spoken to Mother in six months, and Mother had not tried to call. Grandmother further agreed that Mother knowingly placed or allowed B.C.H. to remain in conditions or surroundings that endangered his physical or emotional well-being while the child was in Mother's possession.

         After the grandparents were appointed as sole managing conservators, Mother moved to Kenedy, Texas, near San Antonio. Grandmother described Mother's visits over the years as "sporadic, always late, never what was scheduled" and lacking structure. Grandmother testified that initially, B.C.H. did not want to visit his Mother, and they had to coax him, but he eventually looked forward to the visits. Grandmother indicated B.C.H. was disappointed when Mother showed up late or cancelled the visits. Grandmother testified that after Mother's visits with B.C.H., he would return combative and angry, and she felt Mother was telling B.C.H. inappropriate things about his grandparents. Grandmother further testified she once overheard a conversation wherein J.Z. threatened to kill B.C.H.'s father.

         Grandmother testified that at one point before the court appointed them managing conservators, B.C.H. had broken his teeth when he fell at a water park and required extensive dental work. According to Grandmother, it took more than two years to get his teeth fixed because Mother would not send the grandparents the appropriate insurance documentation after they requested it from her. Mother contradicted this testimony and explained that B.C.H. had always had bad teeth because of an enamel deficiency. Mother asserted she sent the necessary dental card and Medicaid card for the dental work. Grandmother said they immediately fixed B.C.H.'s teeth when they were granted custody in 2014, because they put him on their insurance and obtained Medicaid benefits for him.

         Grandmother explained that Mother never had what she needed when she exercised visitation with B.C.H. and specifically mentioned car safety seats. Grandmother indicated they had to provide everything for him when B.C.H. visited Mother, including clothes. Mother disagreed with this. It was undisputed that Mother failed to pay the grandparents any money for the court-ordered child support for B.C.H. until August 2017.

         Grandmother opined that the grandparents' home was fun, B.C.H. had friends over to play, and they planned to enroll him in piano lessons. Grandmother further testified that B.C.H. is in a stable environment and is thriving. Grandmother testified that their son, B.C.H.'s father, lives in the home with them, but they do not have "a true father-type relationship."

         Exhibits revealed Mother received deferred adjudication for a criminal charge of credit card abuse of the elderly in 2014. While on probation for that offense, Mother tested positive for alcohol and cocaine on one occasion in 2016 and violated other terms of her probation. Her probation was not revoked despite a request for adjudication by the State, but it was extended an additional two years and is scheduled to end in 2022. It was mentioned that Mother and Father were previously involved with illegal drugs, but no details were provided beyond Mother's probation violation. It was Grandmother's opinion that it would not be in B.C.H.'s best interest to be with a person who steals credit cards and uses illegal drugs.

         Grandmother described an incident that occurred in 2015 which eventually led to the grandparents suspending Mother's visits entirely. During a visit, Mother took B.C.H. outside the restricted geographical boundaries to her home near San Antonio without the grandparents' knowledge or permission. During that visit, B.C.H. spent time with Mother's boyfriend, J.Z., in violation of the trial court's order. When the grandparents learned of the prohibited trip, they did not immediately terminate Mother's visits but told Mother she could only visit B.C.H. in their home once a month. Mother did not have a driver's license or a vehicle. The grandparents also restricted Mother's phone calls to B.C.H. to Mondays and Wednesdays between 7 and 8 p.m. because Mother sometimes called very late at night. Grandmother testified that when they advised Mother of these restrictions, Mother responded that they "were sick individuals," and they did not hear from her for fifteen weeks.

         When asked by the court why they did not immediately stop Mother's visits for her violations of the court order, Grandmother explained, "[b]ecause at the time, [B.C.H.] did enjoy spending the time with his mom and she had come frequent enough." Grandmother also indicated she felt at the time it was in B.C.H.'s best interest to keep the connection with Mother. In attempting to explain why she felt it was ultimately in B.C.H.'s best interest to stop Mother's visits, Grandmother said "he was leveling out and becoming more - he wasn't as agitated like he was when he would come home from being with her[.]" She also said they were concerned by some of the stories B.C.H. told when he came home, but she did not provide any details regarding the content.

         According to Grandmother, Mother did not call during the allotted times. Instead, Mother would call at 11 p.m. or 2 a.m. The grandparents eventually blocked Mother's calls but testified that Mother was still able to leave voicemails. Grandmother told the court Mother would leave voicemails stating she called to talk to B.C.H. and to tell him she loved him, then she would hang up. The grandparents received voicemails from Mother through November 2017, but Grandmother indicated she did not share Mother's voicemails with B.C.H. after 2015. Mother testified that the grandparents would never answer her calls and eventually, she was unable to even leave voice mails on Grandmother's phone, but that she never received any return calls and she became disheartened.

         After having her access to B.C.H. restricted by the grandparents, according to Grandmother, Mother never tried to arrange a visitation with B.C.H. through her attorney or the court. Grandmother testified that on one occasion in May 2016, after the termination suit had been initiated, Mother came to the grandparents' home unannounced with a law enforcement officer demanding to see B.C.H. The Grandmother testified that they explained to the officer the circumstances, and Mother was asked to leave without seeing B.C.H. Grandmother indicated B.C.H. has not asked to talk to his Mother or seen her in two years and felt B.C.H. was doing better since Mother was not around.

         While acknowledging that Mother's child support balance was zero at the time of trial, Grandmother testified that although the court ordered Mother to pay child support in the amount of $100 per month beginning in September 2014, the first payment Mother made was on August 8, 2017. This was after the grandparents filed the petition for termination and adoption. Mother made a total of six payments after the grandparents filed their petition for termination and adoption to bring her child support obligation current.

         Mother testified that she loves B.C.H. and denied she voluntarily left him in the possession of his grandparents and expressed an intent not to return. Mother confirmed her last visit was in 2015. Mother testified that she has attempted to see B.C.H. and made phone calls, and it was hurtful for her after leaving voicemails and not receiving a response.

         Mother confirmed she was aware of the contents of the court order from the SAPCR proceeding which provided that she could not remove B.C.H. from the restricted area or allow B.C.H. to be around J.Z. Mother admitted she lied to the grandparents and told them she was taking B.C.H. to see one of her family members in a contiguous county, but in reality, she took B.C.H. to her home near San Antonio. Mother explained that she wanted to take B.C.H. to visit her mother. Mother also admitted that while there, B.C.H. was in the presence of J.Z., even though she knew the trial judge had prohibited her from having B.C.H. around him. When asked why J.Z. should not be around B.C.H., Mother indicated that the boyfriend "liked to smoke a lot of weed and stuff like that," but she denied he ever threatened to kill B.C.H.'s father. Mother testified that she "was being dumb[, ]" and right after the trip, when she realized the grandparents were not going to allow her to visit with B.C.H., she "completely cut off contact with [J.Z.]"

         Mother testified that she failed one drug test about six months after she was placed on deferred adjudication, but since then, she has not failed a drug test despite being tested over twenty times. She also completed her community service and paid her fines. Mother testified she admitted to her probation officer that she used cocaine and, instead of adjudicating, the court extended her probation another two years.

         Mother stated she did not have an excuse for failing to pay child support. However, she did not testify that she was working nor was she asked on cross-examination if she had the ability to pay support prior to the initiation of the suit to terminate her rights. She testified that the grandparents deserved the money and that is why she tried to pay it off. Mother described the challenges of living so far away from B.C.H. and how that impacted her ability to visit. Mother testified she is not currently employed because she is trying to complete her accounting degree online. She also testified that she got married a week before the trial, and she and her husband continue to reside in Kenedy, Texas. Mother indicated she was able to pay her child support arrearage because she recently began receiving payments from oil wells on her family's property; however, she did not want to answer the question regarding how much money she received. Mother testified that the amount she receives depends on the price of oil but that she receives "[e]nough."

         II. Standard of Review

         The standard of proof required in cases involving termination of parental rights is clear and convincing evidence. See Tex. Fam. Code. Ann. § 161.001(b) (West Supp. 2018); In re E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012) (citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). Clear and convincing evidence is defined as "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." Tex. Fam. Code Ann. § 101.007 (West 2014); In re J.F.C., 96 S.W.3d at 264; see also In re E. N.C. , 384 S.W.3d at 802.

         When conducting a legal sufficiency review of the termination of parental rights,

a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinders' conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.
If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient. Rendition of judgment in favor of the parent would generally be required if there is legally insufficient evidence.

In re J.F.C., 96 S.W.3d at 266; see also In re E. N.C. , 384 S.W.3d at 802; In re J.O.A., 283 S.W.3d 336, 344-45 (Tex. 2009).

         When conducting a factual sufficiency review of the termination of parental rights, we "must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing." In re J.F.C., 96 S.W.3d at 266 (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We

should consider whether disputed evidence is such that a reasonable factfinder 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 factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.

In re J.F.C., 96 S.W.3d at 266. We must give due deference to the fact finder's findings, and we cannot substitute our own judgment for that of the fact finder. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (citations omitted).

         III. Analysis

         To terminate parental rights, a trial court must first find: (1) a parent committed one or more prohibited predicate acts under Texas Family Code section 161.001(b)(1); and (2) termination of the parent's rights is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); see also In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). As noted above, the evidence to support these findings must be clear and convincing. See Tex. Fam. Code Ann. §161.001(b). The evidence is clear and convincing when the proof is such that it produces in the mind of the trier of fact a firm belief or conviction of the truth of the allegations sought to be established. See Tex. Fam. Code Ann. § 101.007; In re C.H., 89 S.W.3d at 25-26. Here, the trial court found that Mother engaged in the prohibited predicate acts outlined in each of Texas Family Code subsections 161.001(b)(1)(A), (B), (C), (D), (E), and (F). See Tex. Fam. Code Ann. § 161.001(b)(1)(A)-(F).

         A. Issue One: Legal and Factual Sufficiency to Support Grounds for Termination

         The Texas Supreme Court has stated "[t]ermination of parental rights is traumatic, permanent, and irrevocable[, ]" and they "cannot think of a more serious risk of erroneous deprivation of parental rights than when the evidence, though minimally existing, fails to clearly and convincingly establish in favor of [] findings that parental rights should be terminated." See In re M.S., 115 S.W.3d 535, 549 (Tex. 2003). Mother argues that the evidence is legally and factually insufficient to support each of the predicate findings. "Only one predicate finding under [the termination statute] is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.-Texarkana 2015, no pet.) (citations omitted). Therefore, we find it necessary to examine each ground on which the trial court based the termination.

         1. Predicate Findings under ...


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