Court of Appeals of Texas, Third District, Austin
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,"
...