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In re J.C.R.

Court of Appeals of Texas, Fourth District, San Antonio

May 15, 2019

IN THE INTEREST OF J.C.R.

          From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2017PA02916 Honorable Richard Garcia, Associate Judge Presiding

          Sitting: Patricia O. Alvarez, Justice (concurring in the judgment only) Luz Elena D. Chapa, Justice, Liza A. Rodriguez, Justice

          MEMORANDUM OPINION

          Liza A. Rodriguez, Justice

         Appellant Diana H.[1] appeals the trial court's order terminating her parental rights to her nine-year-old son, J.C.R. Parental rights may be terminated only upon proof of clear and convincing evidence that (1) the parent has committed an act prohibited by section 161.001(b)(1) of the Texas Family Code, and (2) termination is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(b)(1)-(2). After a bench trial, Diana H.'s parental rights were terminated pursuant to subsections 161.001(b)(1)(E), (N), and (O). The trial court then appointed J.C.R.'s father as sole managing conservator and ordered that the Texas Department of Family and Protective Services was released from any further duties in this case.

         On appeal, Diana H. brings four issues: (1) the sufficiency of evidence to support the trial court's findings pursuant to subsections 161.001(b)(1)(E), (N), and (O); (2) the sufficiency of the evidence to support the trial court's finding that termination of her parental rights was in the best interest of her child; (3) the ineffectiveness of her counsel; and (4) the appointment of J.C.R.'s father as sole managing conservator. We affirm.

         Sufficiency of the Evidence

         In reviewing the legal sufficiency of the evidence to support the trial court's findings, we 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." In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We give "appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review," by "assum[ing] that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. "A corollary to this requirement is that [we] should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id. "This does not mean that [we] must disregard all evidence that does not support the finding." Id. (emphasis in original). "Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence." Id. "If, after conducting [our] legal sufficiency review of the record evidence, [we] determine[] that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then [we] must conclude that the evidence is legally insufficient." Id. at 344-45.

         In reviewing the factually sufficiency of the evidence, we consider disputed or conflicting evidence. Id. at 345. "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.

         A. Findings Pursuant to Section 161.001(b)(1)

         The trial court found by clear and convincing evidence that Diana H. had (1) engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child (subsection E grounds); (2) constructively abandoned the child (subsection N grounds); and (3) failed to comply with the provisions of the court-ordered family service plan (subsection O grounds). Only one of these three statutory grounds is necessary to support the trial court's order terminating Diana H.'s parental rights where 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 reviewing the record, we conclude for the reasons explained below that the evidence is legally and factually sufficient to support the trial court's finding pursuant to subsection E that Diana H. engaged in conduct that endangered the physical or emotional well-being of J.C.R.

         Under subsection E, the relevant inquiry is whether there is evidence that the endangerment of the child's physical and emotional well-being was the direct result of the parent's conduct. See In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.). "Conduct" as used in this subsection includes both the parent's actions and failures to act. In re M.J.M.L., 31 S.W.3d 347, 351 (Tex. App.-San Antonio 2000, pet. denied). Termination under this subsection must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. In re J.T.G., 121 S.W.3d at 125. The conduct need not occur in the child's presence and may occur both before and after the child has been removed by the Department. Walker v. Tex. Dep't of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). Scienter is not required for an appellant's own acts under subsection E; it is only a requirement when a parent places her child with others who engage in endangering acts. In re U.P., 105 S.W.3d 222, 236 (Tex. App.-Houston [14th Dist.] 2003, pet. denied).

         Conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child. See A.S. v. Tex. Dep't of Fam. & Protective Servs., 394 S.W.3d 703, 712 (Tex. App.-El Paso 2012, no pet.); In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.-Fort Worth 2009, no pet.). Thus, evidence of illegal drug use by a parent and its effect on a parent's life and her ability to parent may establish an endangering course of conduct under subsection E. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009) (holding evidence sufficient to support finding of endangerment even though father had made significant recent improvements because "evidence of improved conduct, especially of short-duration, does not conclusively negate the probative value of a long history of drug use and irresponsible choices"); In re K-A.B.M., 551 S.W.3d 275, 287 (Tex. App.-El Paso 2018, no pet.) ("A parent's use of drugs may qualify as an endangering course of conduct."); Walker, 312 S.W.3d at 617 ("Because it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under section 161.001(1)(E)."). Further, evidence that the parent continued to use illegal drugs even though the parent knew her parental rights were in jeopardy is conduct showing a voluntary, deliberate, and conscious course of conduct, which by its nature endangers a child's well-being. In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.-Fort Worth 2011, pet. denied); Cervantes-Peterson v. Tex. Dep't of Fam. & Protective Servs., 221 S.W.3d 244, 253-54 (Tex. App.-Houston [1st Dist.] 2006, no pet.).

         The reporter's record of the bench trial in this appeal consists of only fifty-eight pages.[2]Three witnesses testified: Allison Deines, an investigator with the Department; Elaine Perez, a caseworker with the Department; and Appellant Diana H. The investigator, Deines, testified that in December 2017, she went to Diana H.'s home to investigate a referral received by the Department asserting allegations of "neglectful supervision, medical neglect, and physical neglect" due to Diana H.'s use of "meth and pills." Eight-year-old J.C.R. appeared to Deines to be healthy and did not look malnourished. When Deines questioned Diana H. about her drug use, Diana H. admitted she had used "meth" the week before "because she had a tooth abscess." Deines also learned from J.C.R. that he had not been enrolled in school since he was seven years of age. Diana H. then confirmed J.C.R. had not been in school since January 2017, claiming the school had withdrawn J.C.R. because she had been unable to get her mother's (J.C.R.'s grandmother's) signature as head of the household. Deines testified she inquired with the school district but was only able to determine J.C.R. had been withdrawn for an unknown reason. J.C.R. was removed from the home and placed with his paternal grandmother.

         Perez, the caseworker, testified that because Diana H. admitted to having used methamphetamine, the Department requested drug tests on a regular basis. Perez testified in the months leading up to trial, Diana H. tested positive for methamphetamines twice: once as a result from a urinalysis and once as a result from a hair follicle test. According to Perez, on November 15, 2018, which was only eleven days before trial, the hair follicle test was positive for methamphetamines. Perez explained the hair follicle test "can go back two to three months." Perez also testified that Diana H. was ordered to submit to a urinalysis after the previous hearing but did not appear for the test. Based on Diana H.'s previous positive results in the months before trial and based on Diana H.'s refusal to take a drug test after the prior hearing, Perez believed Diana H. was still using methamphetamines. Thus, Perez testified that during the pendency of the case, Diana H. had not addressed the primary reason for her child being removed, had never expressed any accountability for finding herself in this situation, nor given any indication that she was committed to changing her lifestyle.[3] According to Perez, because Diana H. had not complied with urinalysis testing during the pendency of the case, she was not able to participate in visitations with J.C.R.

         With regard to J.C.R. not having been enrolled in school for the twelve months prior to his removal, Perez testified that Diana H. claimed she was unable to enroll him because her mother had just passed away. Perez, however, pointed out that while the grandmother's death would have been "a reason for that moment," it would not explain ...


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