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In re I.D.G.

Court of Appeals of Texas, Eighth District, El Paso

July 30, 2019

IN THE INTEREST OF I.D.G., V.A.G., E.R.G., AND R.J.G., CHILDREN.

          Appeal from 65th District Court of El Paso County, Texas (TC # 2017DCM6687)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION ON MOTION FOR REHEARING

          ANN CRAWFORD MCCLURE, CHIEF JUSTICE

         W.M.U. (Wanda) appeals from the judgment terminating her parental rights to I.D.G., V.A.G., E.R.G., and R.J.G.[1] The trial court also terminated the parental rights of the biological father, V.G., but he has not appealed. On April 9, 2019, we issued our opinion and judgment modifying the termination judgment to delete the finding under Section 161.001(b)(1)(K) and affirming the termination judgment as modified. In our review of the legal and factual sufficiency issues, we did not address termination of Wanda's parental rights under Section 161.001(b)(1)(D) and (E) because Wanda did not challenge two other predicate termination grounds. On May 17, 2019, the Texas Supreme Court decided In re Z.M.M. which holds that due process requires an appellate court to review a parent's sufficiency challenges directed at subsections D and E even when an alternate predicate termination ground is supported by sufficient evidence. In re Z.M.M., No. 18-0734, ___S.W.3d___, 2019 WL 2147266, at *1 (Tex. May 17, 2019)(per curiam); see In re N.G., No. 18-0508, ___S.W.3d___, 2019 WL 2147263 (Tex. May 17, 2019)(holding that due process and due course of law require an appellate court to review and detail its analysis as to termination of parental rights under subsections D or E). Wanda filed an amended motion for rehearing contending that we erred by failing to address the sufficiency challenges to the findings based on subsections D and E. The Department filed a response indicating that we must address these sufficiency challenges.

         We grant Wanda's amended motion for rehearing, withdraw our opinion and judgment issued on April 9, 2019, and issue the following opinion and judgment in their place. Finding that the Texas Department of Family and Protective Services abandoned its request to terminate Wanda's parental rights under Section 161.001(b)(1)(K) of the Texas Family Code, we delete that affirmative finding from the termination order. We also find that the evidence is legally insufficient to support the termination finding under Section 161.001(b)(1)(D) of the Texas Family Code and delete that affirmative finding from the termination order. The termination order, as so modified, is affirmed.[2]

         FACTUAL SUMMARY

         Wanda is the mother of four children, I.D.G., V.A.G., E.R.G., and R.J.G. In 2015, Wanda left the children, ranging in age from six years to nine years of age, at the Lee and Beulah Moor Children's Home in El Paso.[3] She provided her mother, Helen, with a power of attorney to consent to medical treatment for the children. The facility is a temporary group home for children whose parents are having difficulty caring for the children. At the Lee Moor Home, the children are provided a safe home, and they receive counseling, attend school, and are provided medical care. The family is encouraged to participate with the children. Wanda visited the children only sporadically, and it was the children's grandmother, Helen, who participated in the majority of the children's events and activities. When Wanda attended events at the home, including counseling sessions, she focused on her telephone rather than engaging with the children. During the time the children were at Lee Moor Home, Helen cared for the children on the weekends. The children remained at the Lee Moor Home until the Fall of 2017.

         On August 28, 2017, the Department received a report that Wanda had been in and out of jail and she had fled to Mexico with her boyfriend even though she was on probation. Helen informed the caseworker that she had cared for the children for the last eight years, but she could no longer be responsible for them due to her health issues and the children's behavior. The Department attempted to contact Wanda and V.G., but they could not locate either of them. I.D.G. said she had not seen her mother for several weeks and the younger children had not seen her recently and did not know her location. On October 6, 2017, the Department filed a petition seeking termination of Wanda's and V.G.'s parental rights. That same day, the trial court entered an emergency order naming the Department as the temporary sole managing conservator of the children. The court conducted the final trial in the case on September 14, 2018. Wanda was in federal custody and did not attend the trial. Wanda's criminal history includes federal convictions for human trafficking and importing marijuana. She was convicted on September 23, 2010 of encouraging and inducing the illegal entry of aliens and was placed on probation for five years. The terms of probation required Wanda to take parenting classes. In 2011, she was convicted of importing marijuana. Wanda committed this offense only one month after she was placed on probation for the first offense. The court sentenced her to serve twenty-one months followed by probation for three years. Finally, Wanda was convicted on March 11, 2016 of transporting aliens, and she was sentenced to serve sixteen months in prison followed by supervised release for two years. Wanda's federal probation officer, Karen Eisenberg, testified at trial that she requested issuance of a warrant for Wanda in May 2017 after she left the halfway house and other violations of the terms of her supervised release. The court did not revoke Wanda's supervised release, but she was ordered to spend an additional ninety days at the halfway house. Wanda absconded from the halfway house again in September 2017. Following her release from the halfway house in 2018, Wanda was arrested in August 2018 for transporting aliens. At the time of the final hearing in this case, she was in federal custody and facing a new charge as well as revocation of her supervised release.

         The trial court found that the Department had proven by clear and convincing evidence that Wanda had: (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children, pursuant to § 161.00l(b)(1)(D), Texas Family Code; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the child, pursuant to § 161.00l(b)(1)(E), Texas Family Code; (3) executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights, pursuant to § 161.001(b)(1)(K), Texas Family Code; (4) constructively abandoned the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than six months and: (1) the Department has made reasonable efforts to return the children to the mother; (2) the mother has not regularly visited or maintained significant contact with the children; and (3) the mother has demonstrated an inability to provide the children with a safe environment, pursuant to § 161.001(b)(1)(N), Texas Family Code; and (5) failed to comply with the provisions of a court order that specifically established the actions necessary for Wanda to obtain the return of the children who have been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the children's removal from the parent under Chapter 262 for the abuse or neglect of the child, pursuant to § 161.001(b)(1)(O), Texas Family Code. The court also found by clear and convincing evidence that termination of Wanda's parental rights was in the children's best interest, and it appointed the Department as the permanent managing conservator of the children.

         PREDICATE TERMINATION GROUNDS

         In Issues One through Three, Wanda challenges the legal and factual sufficiency of the evidence supporting the trial court's determination that her parental rights should be terminated based on subsections D, E, and K of Section 161.001(b)(1) of the Texas Family Code. Parental rights may be involuntarily terminated through proceedings brought under Section 161.001 of the Texas Family Code. See Tex.Fam.Code Ann. § 161.001. Under this provision, the petitioner must (1) establish one or more of the statutory acts or omissions enumerated as grounds for termination, and (2) prove that termination is in the best interest of the children. See id. Both elements must be established, and termination may not be based solely on the best interest of the child as determined by the trier of fact. Texas Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In the Interest of A.B.B., 482 S.W.3d 135, 138 (Tex.App.--El Paso 2015, pet. dism'd w.o.j.). Only one predicate finding under Section 161.001(b)(1) 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).

         Standards of Review

         When reviewing the legal sufficiency of the evidence in a termination case, we consider all of the evidence in the light most favorable to the trial court's finding, "to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the fact finder's conclusions, indulge every reasonable inference from the evidence in favor of that finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long as a reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We disregard any evidence that a reasonable fact finder could have disbelieved, or found to have been incredible, but we do not disregard undisputed facts. In re J.P.B., 180 S.W.3d at 573; In re J.F.C., 96 S.W.3d at 266. However, when a parent's rights have been terminated based on multiple predicate grounds, including subsections D or E, we must address any sufficiency challenges directed at subsections D and/or E, even if the evidence is sufficient to support termination on other predicate grounds. See In re Z.M.M., 2019 WL 2147266 at *2; In re N.G., 2019 WL 2147263 at *3.

         In a factual sufficiency review, the inquiry is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the challenge findings. See In re J.F.C., 96 S.W.3d at 266. We must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. A court of appeals should consider whether disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. Id. If 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.

         Section ...


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