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In re K.B.

Court of Appeals of Texas, Fifth District, Dallas

October 25, 2019

IN THE INTEREST OF K.B., A CHILD

          On Appeal from the 304th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-18-00004-W

          Before Justices Myers, Molberg, and Carlyle

          MEMORANDUM OPINION

          CORY L. CARLYLE JUSTICE

         In this suit affecting the parent-child relationship, Mother (1) challenges the sufficiency of the evidence to support the trial court's order terminating her parental rights to her son K.B. and (2) asserts she was denied effective assistance of counsel in the trial court. We affirm in this memorandum opinion. See Tex. R. App. P. 47.4.

         I. Background

         On K.B.'s date of birth, December 22, 2017, the Texas Department of Family and Protective Services received a referral alleging "neglectful supervision" of K.B. and "mental instability and erratic behaviors" by Mother. The Department began an investigation. Several days later, the Department received another neglectful supervision referral and a report that K.B.'s meconium tested positive for marijuana. The Department removed K.B. from Mother, placed him in foster care, and filed this lawsuit seeking conservatorship of K.B. and termination of Mother's parental rights.[1] Mother filed a general denial answer and counterclaimed for managing conservatorship of K.B.

         The Department prepared a January 12, 2018 service plan that required Mother to complete drug testing, counseling, and a psychiatric evaluation in order to be reunited with K.B. In late November 2018, the parties signed a mediated settlement agreement (MSA) granting Mother a 180-day monitored return of K.B. On April 11, 2019, the Department again removed K.B. from Mother and placed him in foster care. In an "Affidavit in Support of Removal," a Department caseworker repeated the allegations described above and stated that on April 10, 2019, she "received a call from previous kinship caregiver, Tonya Anthony," who told her Mother "was arrested for assault causing a bodily injury."

         The trial court held a May 20, 2019 bench trial. A Department caseworker testified this case was originally filed "due to the concerns that [Mother] had some mental health issues" and "also [K.B.'s] meconium tested positive for marijuana." The caseworker stated (1) at the time K.B. was first removed, Mother "was excessively scrubbing the baby and assuming that there was something wrong with him and taking his temperature, like, every 30 minutes"; (2) Mother "ended up getting to a position where the Department believed that a monitored return would be sufficient"; and (3) during the monitored return, Mother violated MSA provisions that required her to continue counseling services and maintain daycare for K.B.; failed to demonstrate she complied with taking her medication; and, in K.B.'s presence, assaulted a neighbor who was babysitting for K.B., which resulted in Mother being jailed and K.B. being returned to his previous foster caregiver, Anthony. The Department offered into evidence an "affidavit" by a staff member of the facility where Mother was living at the time of K.B.'s birth describing Mother's "unstable" and "concerning" behavior at that time. That exhibit was admitted into evidence without objection. On cross-examination, Mother's counsel asked the Department caseworker if she was "requesting the Court take judicial knowledge of the contents of [K.B.'s] file." The caseworker answered "yes." Additionally, (1) Anthony testified she is K.B.'s current caregiver and would like to adopt K.B. if Mother's rights are terminated; (2) the Department caseworker testified adoption by Anthony is in K.B.'s best interest; (3) K.B.'s guardian ad litem testified termination of Mother's parental rights is in K.B.'s best interest; and (4) Mother's neighbor testified that while babysitting K.B. on approximately December 19, 2018, she was physically assaulted by Mother in K.B.'s presence and Mother "was the aggressor in that altercation." Mother appeared at trial through counsel but was not present in person.[2]

         The trial court signed a June 7, 2019 termination order in which it stated it found by clear and convincing evidence that terminating Mother's parental rights was in K.B.'s best interest and Mother had (1) "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child, pursuant to § 161.001(b)(1)(D), Texas Family Code"; (2) "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, pursuant to § 161.001(b)(1)(E), Texas Family Code"; and (3) "failed to comply with the provisions of court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of [the Department] for not less than nine months as result of the child's removal from the parent . . . for the abuse or neglect of the child, pursuant to § 161.00(b)(1)(O), Texas Family Code."

         II. Evidentiary sufficiency

         A trial court may terminate the parent-child relationship if it finds by clear and convincing evidence (1) one or more statutory grounds for termination enumerated in the Texas Family Code and (2) termination is in the child's best interest. Tex. Fam. Code § 161.001(b)(1)-(2). "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." In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam) (quoting Fam. § 101.007).

         On appeal, we apply a standard of review that reflects the elevated burden at trial. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014); In re A.T., 406 S.W.3d 365, 370 (Tex. App.-Dallas 2013, pet. denied). This means both legal and factual sufficiency review of an order terminating parental rights require a reviewing court to consider all the evidence to determine whether the factfinder could reasonably form a firm belief or conviction that the grounds for termination are proven. See In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002); In re L.E.H., No. 05-18-00903-CV, 2018 WL 6839565, at *4 (Tex. App.-Dallas, Dec. 31, 2018, no pet.) (mem. op.). The distinction between legal and factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be considered. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). In conducting a legal-sufficiency review, the reviewing court cannot ignore undisputed evidence contrary to the finding, but rather must otherwise assume the factfinder resolved disputed facts in favor of the finding. Id. at 630- 31. Thus, in cases requiring the clear-and-convincing burden, evidence is legally sufficient if, viewing all the evidence in the light most favorable to the fact finding and considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or conviction that the finding was true. Id. at 631. Factual sufficiency requires weighing disputed evidence contrary to the finding against all the evidence favoring the finding. Id. In a factual-sufficiency review, the appellate court must consider whether disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the finding. Id. Thus, in cases requiring the clear-and-convincing burden, evidence is factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true. Id.

         Section 161.001(b)(1)'s termination grounds include, among other things, (1) knowingly placing or knowingly allowing the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child, see Fam. § 161.001(b)(1)(D), and (2) engaging in conduct or knowingly placing the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, see id. § 161.001(b)(1)(E). Because an order terminating a parent's rights under subsection (D) or (E) can be used as a basis to terminate the parent's rights to another child under subsection 161.001(b)(1)(M), terminating rights under (D) or (E) has "significant" collateral consequences. In re N.G., 577 S.W.3d at 234; Fam. § 161.001(b)(1)(M). Therefore, "due process requires an appellate court to review and detail its analysis as to termination of parental rights under section 161.001(b)(1)(D) or (E) of the Family Code when challenged on appeal." In re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019) (per curiam).

         Subsections (D) and (E) both require proof of endangerment. "Endanger" means to expose to loss or injury or to jeopardize a child's emotional or physical health, but it is not necessary that the conduct be directed at the child or that the child actually suffer an injury. In re J.D.B., 435 S.W.3d 452, 463 (Tex. App.-Dallas 2014, no pet.); In re L.E.H., 2018 WL 6839565, at *5 (citing In re Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). The primary distinction between the two subsections is the source of the physical or emotional endangerment to the child. See In re J.D.B., 435 S.W.3d at 463. Subsection (D) addresses the child's surroundings and environment while subsection (E) addresses parental misconduct. Id. Parental conduct, however, is relevant to the child's environment under subsection (D). In re K.J., No. 05-18-00624-CV, 2018 WL 5730167, at *2 (Tex. App.-Dallas Nov. 2, 2018, no pet.) (mem. op.) (citing In re J.D.B., 435 S.W.3d at 463). That is, "[c]onduct of a parent or another person in the home can create an environment that endangers the physical and emotional well-being of a child as required for termination under subsection (D)." In re J.D.B., 435 S.W.3d at 463 (quoting Castaneda v. Tex. Dep't of Protective & Regulatory Servs., 148 S.W.3d 509, 522 (Tex. App.-El Paso 2004, pet. denied)). Inappropriate, abusive, or unlawful conduct by persons who ...


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