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D. L.-B. v. T. D.

Court of Appeals of Texas, Third District, Austin

October 30, 2019

D. L.-B., Appellant
v.
T. D. and J. D., Appellees

          FROM THE 22ND DISTRICT COURT OF CALDWELL COUNTY NO. 18-A-471, THE HONORABLE CHRIS SCHNEIDER, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Triana and Smith

          MEMORANDUM OPINION

          GISELA D. TRIANA, JUSTICE

         Appellant D.L.-B. ("the mother") appeals from the district court's order terminating the mother's parental rights to her children, A.M.-E. and V.B.B. ("the children"). In a single issue on appeal, the mother asserts that there is legally and factually insufficient evidence to prove that termination of her parental rights is in the best interest of the children. We will affirm the district court's order.

         BACKGROUND

         The children, two girls ages seven and four at the time of trial, were first removed from the mother in 2014, when the Texas Department of Family and Protective Services ("the Department") received a report that the mother had injured one of the children. The children were placed in the temporary care of appellees T.D. and J.D., who would later become the children's foster parents. In 2015, the children were returned to the mother. However, in 2016, following allegations that one of the children had a black eye, the children were again removed from the mother and returned to the foster parents. The children subsequently went back and forth between the mother and the foster parents on multiple occasions, and the foster parents, who wanted to adopt the children, grew increasingly frustrated with the situation.

         In October 2018, the foster parents filed suit for termination of the mother's parental rights. The case proceeded to a bench trial. The district court heard from multiple witnesses at trial, including Tammy Axelson, a court-appointed child-custody evaluator; Tahlia Stewart, the guardian ad litem for the children; Dr. Tina Nunnellee, a licensed professional counselor; the foster mother; the mother; and M.B., the mother's husband. The district court also considered documentary evidence, including a detailed child-custody evaluation prepared by Axelson. We discuss the evidence presented at trial in more detail below.

         At the conclusion of trial, the district court found by clear and convincing evidence that the mother (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 and (2) had her parent-child relationship terminated with respect to another child based on a finding that her conduct was in violation of Paragraph (D) or (E) of section 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code § 161.001(b)(1)(D), (M). The district court also found that termination of the parent-child relationship between D.L.-B. and the children was in the best interest of the children. See id. § 161.001(b)(2). This appeal followed.

         STANDARD OF REVIEW

         The district court may order termination of the parent-child relationship "if clear and convincing evidence supports that a parent engaged in one or more of the [statutorily] enumerated grounds for termination and that termination is in the best interest of the child." In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam) (citing Tex. Fam. Code § 161.001(b)). "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 Tex. Fam. Code § 101.007; Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)).

         "The distinction between legal and factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be considered." Id. "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, in comparison, 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. "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.

         ANALYSIS

         Because the mother does not challenge the sufficiency of the evidence supporting the statutory grounds for termination, we focus our analysis on the district court's finding that termination was in the best interest of the children. The best-interest prong of the termination statute "is child-centered and focuses on the child's well-being, safety, and development." Id. "A best-interest determination is thus guided by several non-exclusive 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 the existing parent-child relationship is improper; and (7) any excuse for the parent's acts or omissions." Id. (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)); see also In re E. N.C. , 384 S.W.3d 796, 807 (Tex. 2012); In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). "The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest," C.H., 89 S.W.3d at 27, but the best-interest finding "must be supported by clear and convincing evidence in the record," E. N.C. , 384 S.W.3d at 808.

         The mother's acts or omissions that indicate an improper parent-child relationship

         The mother has an extensive history with the Department. In 2003, the mother's parental rights to her first child were terminated after the trial court found by clear and convincing evidence that she had engaged in conduct that endangered the physical or emotional well-being of the child. Shortly thereafter, the mother lost her parental rights to a second child after that child was born prematurely due to the mother's use of crack cocaine.[1] In 2011 and 2014, the mother gave birth to her third and fourth children, the children subject to this suit, and the Department investigated the mother for physically abusing and neglecting those children. In 2017, the mother gave birth to her fifth child and, in early 2019, her parental rights to that child were terminated after the child tested positive for a potentially "lethal dose" of cocaine in her system.[2]

         The mother acknowledged that she had used cocaine on six separate dates in June 2018, although she denied that her drug use had endangered the life of the child who had tested positive for cocaine. The mother claimed that the child had been exposed to cocaine by another person who was living in her household at the time, Priscilla Middlebrook. The mother testified that Middlebrook was an "ex-heroin addict" whom she had met while serving time in the Caldwell County Jail, and the mother invited Middlebrook to live with her, her husband, and the children after she got out of jail. The mother claimed that Middlebrook used marijuana and cocaine while she was living with them and that Middlebrook had exposed the youngest child to cocaine when the mother had allowed Middlebrook to take care of the child. When confronted with evidence that the child's exposure to cocaine had instead occurred when the mother was breastfeeding her, the mother denied it and claimed that at the time she was using cocaine, she had stopped breastfeeding the child.

         The mother had a history of lying. She had told her husband, M.B., that he was the father of the children subject to this suit, and she had repeated that claim under oath at a prior court hearing. However, subsequent DNA testing revealed that M.B. was not the father of the children. The mother admitted that she had perjured herself on that matter. The mother had also made false reports that the foster family had engaged in criminal activity, including a claim that the two sons of the foster parents had sexually abused the children. Child Protective Services had investigated this and other claims and had "ruled out" the mother's allegations, having found no evidence to substantiate her claims. Tahlia Stewart, the guardian ad litem for the children, testified that in her experience, the mother had lied regularly on matters relating to the children, and the mother's husband acknowledged that she is "not good about telling the truth." The mother had also lied to investigators about Middlebrook, the drug user who was living in her home, at first claiming that Middlebrook was only visiting them for a weekend before admitting that Middlebrook had lived with them on an extended basis.

         The district court also heard evidence that the mother had neglected and failed to supervise the children. Stewart testified that the mother "wouldn't pay attention to the children" and would allow them to walk in and out of the house unsupervised, which concerned Stewart because there was an above-ground swimming pool in the backyard that was a safety hazard for the children. Stewart believed that "the main issue" with the mother was her "neglectful behavior" toward the children and "the mental abuse that she inflicts on them," ...


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