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N. P. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

August 22, 2019

N. P. and J. P., Appellants
Texas Department of Family and Protective Services, Appellee


          Before Justices Goodwin, Baker, and Kelly.


          Melissa Goodwin, Justice.

         Following a bench trial, J.P. (the Mother) and N.P. (the Father)[1] appeal from the trial court's final order terminating their parental rights to their child A.P., born in February 2010, and terminating the Mother's parental rights to her child K.J., born in May 2006.[2]See Tex. Fam. Code § 161.001 (providing for involuntary termination of parent-child relationship). Because the Father did not file an appellant brief, we dismiss his appeal for want of prosecution.[3] As to the Mother's appeal, she raises a single issue challenging the legal and factual sufficiency of the trial court's finding that termination is in the best interest of the children, see id. § 161.001(b)(2) (requiring finding by "clear and convincing evidence" that "termination is in the best interest of the child"), but she does not dispute the finding that she committed statutory grounds for termination, see id. § 161.001(b)(1)(D), (E), (O), (P). For the following reasons, we overrule the Mother's sole issue on appeal and affirm the trial court's order.


         In this case, a bench trial began on November 30, 2018, and continued on January 24 and February 21, 2019. In addition to the Father and the Mother, the following witnesses testified at trial: Kathleen O'Reilly, A.P.'s school counselor; Ashley Bastian, the Department's investigator; Jennifer Hall, the Department's caseworker; Leslie Scibienski, A.P. and K.J.'s appointed guardian ad litem; the Father's half-brother's stepfather; and the Father's sister (the Aunt). The following recitation of facts is taken from the testimony and exhibits presented at trial.

         On November 9, 2017, the Department received a referral from O'Reilly after A.P. came to school with a black eye and made an outcry of abuse. O'Reilly testified that A.P. told her that her parents started fighting; that her Father then "pulled her out of the car, and she hit the side of her face on the door"; and "that she got choked from the seat belt, which left a mark on her neck." O'Reilly explained that she made the referral because, in addition to the black eye and outcry of abuse, A.P. told her that her Mother "drives drunk a lot, and that's why her dad would fight with her, because he didn't want her in the car with her mother" and that "her parents physically fight often." O'Reilly also had concerns regarding A.P.'s school attendance and the Father's slurred speech when he would pick up A.P. from school.

         The day after receiving the referral, the Department sent its investigator Bastian to speak with A.P. and school personnel. A.P. told Bastian that she had "witnessed her parents choking each other, slapping each other, pushing each other on the ground, spitting on each other" and "that her parents drink an extensive amount of alcohol and would drive with [A.P. and K.J.] in the vehicles under the influence." Bastian next made contact with the Father at the RV park where he lived-although the Father was "in the midst of moving the RV to a new location"-and administered a mail-off drug test, which later came back positive for cocaine, methamphetamine, and hydrocodone. Bastian also attempted to contact the Mother but initially struggled making contact because the Mother was arrested for theft by check in November. On December 4, Bastian was able to make face-to-face contact with the Mother. The Mother admitted that there was domestic violence in her relationship with the Father and that the Father had even "attempt[ed] to kill [the Mother] by choking her," but explained that "she was not the abuser, that it was [the Father]." The Mother denied any drug use; but when Bastian administered an instant drug test, she tested positive for methamphetamine. The Department exigently removed the children that day and placed them in a private foster home. The next day, the Department filed its original petition for protection of the children, for conservatorship, and for termination in the suit affecting the parent-child relationship, and Bastian filed an "Affidavit in Support of Exigent Removal."

         In January 2018, Hall took over as caseworker, and in February 2018, Scibienski was appointed as the guardian ad litem for the children. Hall developed the Mother's service plan, which included requirements for psychological evaluation and drug testing and assessment. The Mother never completed the psychological evaluation and in her drug and alcohol assessment she was diagnosed with "amphetamine use disorder moderate and alcohol use moderate." The Mother did not complete the intensive outpatient or any substance abuse program as recommended. The Mother often missed her random drug tests, but in the tests she did complete, she tested positive for cocaine, marijuana, methamphetamine, benzodiazepine, hydrocodone, and hydromorphone. Her service plan also required her to refrain from criminal activity, but her probation was revoked twice in the course of this case and ultimately the Mother was sentenced to "a nine-month program at [a Substance Abuse Felony Punishment Facility (SAFP)] to be followed by 60 to 90 days in a halfway house, and then she would be on high-risk probation," which if "she failed to abide . . . she would be sent to prison for ten years." The Mother entered the SAFP facility on September 18, and at the time of trial, Guadalupe County was seeking to revoke her probation for failing to participate in the SAFP program. The Mother also was provided visitation with her children every other week until she was incarcerated in May 2018, but she would frequently fail to show up or arrive late-she completely missed four, was late for two, and showed up on time for only two visits.

         In June 2018, the children moved from their foster care home to Louisiana to live with the Aunt. The Aunt is an elementary school principal with two girls of her own, who were four and seven in 2018. The Aunt described the change as "[w]onderful" and said that her family has gone "from a family of four to a family of six overnight." When this change occurred, the Aunt sold her home and now they "are living in a home with a fourth bedroom to accommodate the girls." A.P. and K.J. are involved in their school programs, extracurricular activities, and city sport leagues. The Aunt testified that she and the Mother "have never been close"-she does "not agree with the decisions that [the Mother has] made over many years of knowing her" and "often questioned her choices as a mother," including that she "frequently visited the champagne fountain the night of [the Aunt's] wedding while she was visibly pregnant with [A.P.]." Nor is the Aunt close with the Father, "mainly because [she does] not agree nor support any of his lifestyle choices," including his "substance abuse"-a "severe drug problem"-and driving while intoxicated.

         At the close of trial, the judge stated that "this Court is not going to wait for y'all [the Mother and Father] to get your act together. You've had that opportunity. You had that opportunity before the children were taken -- or removed, excuse me. And you have had the opportunity since to make the decision to put your children first, and for whatever reasons you have chosen not to do that or elected not to do that or failed to do that." On March 14, 2019, the judge signed a final order finding by clear and convincing evidence that it was in the children's best interest that the Mother's parental rights be terminated and that statutory grounds supported the termination. The Mother timely appealed the order.


         "Texas Family Code section 161.001(b) allows for involuntary termination of parental rights if clear and convincing evidence supports that a parent engaged in one or more of the twenty-one enumerated grounds for termination and that termination is in the best interest of the child." In re N.G., No. 18-0508, __ S.W.3d __, 2019 WL 2147263, at *1 (Tex. May 17, 2019) (per curiam). "Proceedings to terminate the parent-child relationship implicate rights of constitutional magnitude that qualify for heightened judicial protection." In re A.C., 560 S.W.3d 624, 626 (Tex. 2018). "Because termination of parental rights 'is complete, final, irrevocable and divests for all time' the natural and legal rights between parent and child, a court cannot involuntarily sever that relationship absent evidence sufficient to '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. at 630 (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); Tex. Fam. Code § 101.007). "This heightened proof standard carries the weight and gravity due process requires to protect the fundamental rights at stake." Id. And "[t]he distinction between legal and factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be considered." Id.[4]


         Because the Mother does not challenge the finding that statutory grounds support termination, we turn to the "second termination prong-best interests-[which] is child-centered and focuses on the child's well-being, safety, and development." Id. A best-interest determination is guided by several non-exclusive Holley factors, including:

(1) the child's emotional and physical needs; (2) the emotional and physical danger to the child now and in the future; (3) the parental abilities of the individuals seeking custody; (4) the plans for the child by those individuals and the stability of the home; (5) the plans for the child by the agency seeking custody and the stability of the proposed placement; (6) the parent's acts or omissions that may indicate ...

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