Court of Appeals of Texas, Eighth District, El Paso
IN THE INTEREST OF B.M.S. AND P.L.S., CHILDREN.
Appeal
from 143rd District Court of Ward County, Texas (TC #
15-05-23594-CVW)
Before
McClure, C.J., Rodriguez, and Palafox, JJ.
OPINION
ANN
CRAWFORD MCCLURE, CHIEF JUSTICE
N.C.
S. appeals from the judgment terminating his parental rights
to B.M.S. and P.L.S. We affirm.
FACTUAL
SUMMARY
N.C.
S. ("Nick") and A.E.M. ("Ava") are the
biological parents of sixteen-year-old B.M.S. and
thirteen-year-old P.L.S.[1] Nick and Ava were never married, and
they separated ten to twelve years before the final hearing
on December 31, 2018. The children were living with Ava and
her boyfriend in October 2017 when the Department removed
them from the home based on allegations of drug use, domestic
violence, and neglect. The Department filed a petition
seeking to terminate the parental rights of both Nick and
Ava. Following an emergency hearing, the trial court
appointed the Department as the temporary managing
conservator of the children and they were placed in a foster
home. Nick could not be located, but he was eventually served
on February 1, 2018 while incarcerated. Nick testified about
his knowledge of Ava's drug use. At the first portion of
the de novo hearing, Nick initially testified he did
not know whether Ava was using drugs in the children's
presence, but stated, "I know what kind of person she
is." When pressed, Nick testified he did not have any
doubt she was using drugs in front of the children. At the
second portion of the de novo hearing, Nick
maintained that he did not know about the domestic violence
in the home or the specific drugs Ava and her boyfriend were
using. He knew Ava abused drugs, and while she did not use
drugs in front of him, he had information which led him to
believe that Ava was using drugs around the children. He also
believed that Ava's drug use harmed the children
emotionally. Despite this knowledge, Nick did not take any
action to obtain custody of the children.
Nick
had his own issues with drug abuse. When asked if drugs had
been a problem in his life, he replied, "I've loved
smoking weed my whole life." He smoked marijuana daily
and admitted that other drugs have been a problem for him. In
the past, he had used methamphetamine weekly. At the hearing
on November 29, 2018, Nick denied using drugs or alcohol that
day, but said he had used drugs a week earlier. The trial
court ordered Nick to submit to a drug test, but Nick failed
to comply. Nick admitted at the hearing on December 31, 2018
that he would not be able to pass a drug test if one was
administered to him that day. He had last used
methamphetamine one month before the hearing, but he had
smoked marihuana the previous day. Nick also had a criminal
history related to his use of drugs. Nick was placed on
probation for possession of marihuana in 2017, but his
probation was revoked and he served sixty days in jail. He
was incarcerated on that charge when the Department filed the
termination petition. Shortly after his release, Nick was
arrested for driving with an invalid license. He had not had
a valid driver's license since 2012 or 2013. Nick also
has a conviction for possession "under a gram" and
he served fifteen months for that offense.[2]
Nick is
unemployed and is unable to provide even the basic
necessities for the children. He has not had a home or
apartment of his own since 2012 or 2013. At the time of the
first hearing, Nick had been working for World Technical
Services for about six weeks and was making $10 per hour. He
was living with "the kids' uncle". By the time
of the second hearing a month later, Nick had lost the job.
He did not know why he had been fired. Nick's
brother-in-law had kicked him out of the house and Nick was
living with a friend. Nick works "off and on" for a
retired couple and makes $10 per hour.
The
trial court found that the Department had proven by clear and
convincing evidence that Nick had 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. The court also found by
clear and convincing evidence that termination of Nick'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 GROUND
In
Issue One, Nick challenges the legal and factual sufficiency
of the evidence supporting the trial court's finding
under Section 161.001(b)(1)(D). See Tex.Fam.Code
Ann. § 161.001(b)(1)(D). 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). However, when a parent's
rights have been terminated based on multiple 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. In re Z.M.M., No. 18-0734,
__S.W.3d __, 2019 WL 2147266, at *2 (Tex. May 17, 2019) (per
curiam); see In re N.G., No. 18-0508, __S.W.3d __,
2019 WL 2147263 at *3 (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). We will affirm the
termination order if the evidence is both legally and
factually sufficient to support any alleged statutory ground
the trial court relied upon in terminating the parental
rights as well as the finding of best interest. J.S. v.
Texas Department of Family and Protective Services, 511
S.W.3d 145, 159 (Tex.App.--El Paso 2014, no pet.).
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.
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
...