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In re C.A.

Court of Appeals of Texas, Seventh District, Amarillo

June 6, 2019


          On Appeal from the 320th District Court Potter County, Texas Trial Court No. 90352-D-FM and 77, 106-D, Honorable Carry Baker, Presiding

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



         In separate cases, appellee the Texas Department of Family and Protective Services sought termination of parental rights to two children. The cases were tried together. V.S. ("the mother") is the mother of C.A., age five at the final hearing, and Z.N., then age ten. Her parental rights to C.A. were terminated, and she appeals in case number 07-18-00439-CV.[1] The mother's parental rights to Z.N., and those of Z.N.'s father S.N., also were terminated, and both parents appeal in case number 07-18-00440-CV. We will affirm the final orders terminating the mother's parental rights to C.A. and Z.N. but will reverse and remand for a new trial the final order terminating the parental rights of S.N.[2]


         A Department investigator testified at final hearing she received a report concerning the mother's suspected drug use in April 2017. At the time C.T.A. was in jail on an unspecified charge while S.N. was in prison, serving three concurrent ten-year sentences for indecency with a child.

         A drug screen was requested of the mother but she did not comply at first. In June 2017, the mother submitted to drug testing; the results were positive for methamphetamine and amphetamine. At the same time, C.T.A. tested positive for marijuana and C.A. tested positive for methamphetamine.

         On behalf of C.A. and Z.N. the Department filed the suits affecting the parent-child relationships in July 2017. The children were removed, and the Department was appointed temporary sole managing conservator of both children.

         The Department prepared a plan of services for the mother and S.N. to obtain the return of Z.N. and C.A. The Department caseworker handling the cases testified at final hearing that she sent S.N.'s service plan to him in prison. The parties do not dispute that their service-plan obligations were made orders of the court. On appeal, the mother does not challenge the trial court's implicit finding that she did not comply with the requirements of her service plan.

         The final hearing was to the bench in November 2018. The mother was present and testified in her case-in-chief. Some two months before final hearing S.N. was released from prison and moved to Dallas. He did not appear at final hearing but was represented by counsel.

         In testimony, the Department's caseworker recommended termination of the parental rights of the mother and S.N. and expressed the opinion that decision would be in the children's best interest. Leigh Sexton, LPC, was a counselor for the children. In her testimony, she recommended C.A. not be returned to the mother, noting drug use, instability, and the mother's apparent failure to address C.A.'s outcries of sexual abuse. The mother asked the court in testimony not to terminate her parental rights to the children but to name the Department their permanent managing conservator. She agreed with her attorney "that as time progresses . . . you can get more both sobriety and stability, that you can become a more effective part of your children's life." The children's attorney ad litem and guardian ad litem asked the court to terminate the parental rights of the mother and S.N. so that the children could be adopted by their foster parents.


         I. Legal Background

         The Texas Family Code permits a trial court to terminate parental rights if the Department proves by clear and convincing evidence that the parent committed an action prohibited under section 161.001(b)(1) and termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b)(1), (2) (West Supp. 2018). In such cases, due process requires adherence to the clear and convincing evidence standard of proof. In re N.G., No. 18-0508, 2019 Tex. LEXIS 465, at *8 (Tex. May 17, 2019) (per curiam). "Clear and convincing evidence" is that "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." Id. (quoting Tex. Fam. Code Ann. § 101.007).

         Appellants' issues challenge the legal and factual sufficiency of the evidence supporting provisions of the final orders. Under the legal sufficiency analysis, a reviewing court examines all of the evidence in the light most favorable to the challenged finding, assuming the "factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The court disregards all contrary evidence the factfinder could have reasonably disbelieved or found incredible. Id. But, it takes into account undisputed facts that do not support the finding, so as not to "skew the analysis of whether there is clear and convincing evidence." Id. If the record presents credibility issues, the reviewing court must defer to the factfinder's determinations provided they are not unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

         In a factual sufficiency review, a court of appeals must give due consideration to the evidence the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). The court determines whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. In doing so the court of appeals considers whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. 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.

         II. The Department's cases against the mother:

         In re C.A., 07-18-00439-CV & In re Z.N., 07-18-00440-CV

         The mother raises one issue in each case. She contends the evidence was legally and factually insufficient to support the trial court's findings that termination of her parental rights was in the best interest of the children. She does not challenge the court's findings of the predicate grounds she engaged in endangering conduct under subsections 161.001(b)(1)(D) and (E); had her parental relationship to another child terminated on endangerment grounds; did not comply with a court order specifying the actions necessary for return of the children; and endangered the children ...

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