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In re B.M.S.

Court of Appeals of Texas, Eighth District, El Paso

August 7, 2019


          Appeal from 143rd District Court of Ward County, Texas (TC # 15-05-23594-CVW)

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



          N.C. S. appeals from the judgment terminating his parental rights to B.M.S. and P.L.S. We affirm.


          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.


         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 ...

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