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In re S.B.

Court of Appeals of Texas, Seventh District, Amarillo

November 5, 2019

IN THE INTEREST OF S.B., A CHILD

          On Appeal from the 320th District Court Potter County, Texas Trial Court No. 91, 359-D, Honorable Pamela C. Sirmon, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          JUDY C. PARKER JUSTICE.

         In this accelerated appeal, appellant, K.F., seeks reversal of the trial court's judgment terminating her parental rights to S.B.[1] K.F. challenges the lack of notice of the termination hearing, the effectiveness of her counsel, the sufficiency of the evidence to support her constructive abandonment of the child, the sufficiency of the evidence to support her failure to comply with court-ordered services, and the finding that termination is in the best interest of the child. We affirm the judgment of the trial court.

         Background

         K.F. and her boyfriend, K.B., were living with K.F.'s mother when S.B.[2] was born on February 14, 2018. S.B. was unable to breathe and feed simultaneously and, due to these complications, S.B. remained in the neonatal intensive care unit at Northwest Hospital in Amarillo for fifteen days. While S.B. was hospitalized, the Texas Department of Family and Protective Services became involved after allegations of abuse and neglect by K.F. and K.B.[3] were reported to the Department. The report alleged that K.B. was angry at hospital staff and "acting irrationally" which led to him being escorted out of the hospital.

         The Department's investigator conducted several visits to the home that K.F. and K.B. would be sharing with K.B.'s father once S.B. was discharged from the hospital. The home was found to be in a deplorable condition and was deemed unsafe for an infant. Upon entry to the home, the investigator observed cockroaches, molded food, piles of clothes, holes in the walls, and trash everywhere. According to the investigator, the home smelled of rotting meat, cat urine, and human body odor. The home remained in this condition throughout the investigation with little improvement. There were also concerns due to K.B.'s untreated mental health issues and his previous history with the Department which resulted in the removal of K.B.'s child from a previous relationship. As a part of the Department's investigation, drug testing was performed and K.B. tested positive for marijuana. The Department offered Family Based Safety Services to K.F. and K.B., if K.F. would move into a shelter with S.B. while K.B. worked services. K.F. refused to separate herself from K.B. and there were no other placement possibilities available. After determining that S.B. would be at serious risk for substantial harm because of the mental and emotional functioning of K.B., the inability of K.F. to temporarily separate from K.B., and the physical condition of the home, the Department obtained an order of emergency protection of S.B. and removed the child from K.F.'s care.

         Shortly after S.B. was removed, the Department was contacted by D.B., [4] who claimed to be S.B.'s father. After genetic testing, an order was entered adjudicating D.B. the father of S.B.

         Following an adversary hearing, the Department was appointed temporary managing conservator and S.B. was placed in a foster home pending the approval of a home study on D.B.'s parents. The court named K.F. as a possessory conservator and ordered her to comply with a service plan developed by the Department.

         The Department developed a service plan for K.F. and, because she was continuing her relationship with K.B., the Department also developed a service plan for K.B. The caseworker reviewed the service plan with K.F., who signed the plan. The court-ordered service plan set out several tasks and services for K.F. to complete before reunification with S.B. could occur. These tasks and services included the following: complete a psychological evaluation and follow recommendations; pay child support of $50 per month; maintain regular contact with her caseworker; abstain from the use of illegal drugs; submit to random drug screens; locate and maintain stable housing that is free from drugs and violence; locate and maintain stable employment; complete a psychosocial assessment and follow recommendations; attend individual counseling; take parenting classes; participate in rational behavior therapy (RBT); and participate in an assessment at Texas Panhandle Centers (TPC) and follow recommendations. The family service plan also informed K.F. that its purpose was to assist her in providing a safe environment for S.B. The plan warned K.F that if she was "unwilling or unable to provide [S.B.] with a safe environment, [her] parental . . . rights may be restricted or terminated or [S.B.] may not be returned to you."

         The trial court conducted a status hearing on April 19, 2018, attended by K.F. and her counsel. Following the hearing, the trial court signed a status hearing order, approving and incorporating by reference the Department's family service plan and making the service plan an order of the trial court. In the order, the trial court found that K.F. had reviewed the service plan, understood it, and signed it.

         The associate judge held permanency hearings on August 23 and December 6, 2018. K.F. attended each of these hearings. The associate judge signed orders following each hearing in which the court found that K.F. had "not demonstrated adequate and appropriate compliance with the service plan."

         K.F. completed her psychosocial evaluation and, beginning in May, she attended six sessions of individual counseling with Jennifer Voigt, a licensed professional counselor. According to Voigt, K.F. acknowledged that the home she shared with K.B. was not clean and that it might not be suitable for a child. K.F. also acknowledged that K.B. had anger outbursts in the past, but denied that he would be a danger to S.B. K.F. questioned the accuracy of K.B.'s positive drug tests, stating that there was no reason that K.B. should test positive for marijuana because he was not using drugs.[5] K.F. held several different jobs throughout the sessions and, toward the end of counseling, she obtained an apartment with K.B. and her mother. The last session that Voigt had with K.F. was in October. Voigt opined that K.F. had knowledge of appropriate parenting skills and that K.F. was able to explain how she would use the skills in parenting S.B. While K.F. made progress in counseling, Voigt expressed concern that K.F. would not place the safety of S.B. over her relationship with K.B. K.F. did not see the point of RBT and K.F. was unable to give any example of any tools that she learned from taking the course. Based on her experience with K.F., Voigt did not believe that K.F. was able to effectively parent S.B.

         K.F.'s caseworker testified that K.F. scheduled a psychological evaluation two times, but that she failed to show for the evaluation. Also, K.F. did not schedule a mental health evaluation at TPC or participate in parenting classes. The last contact that the caseworker had with K.F. was at a home visit on December 20. According to the caseworker, K.F. maintained sporadic contact with her. The caseworker did not have a current phone number for K.F. at the time of trial. K.F. submitted to three random drug tests and these tests were all negative.

         In November, K.F. and K.B. moved into an apartment with K.F.'s mother. In December, the caseworker visited the home. The conditions of that home were a serious concern due to trash on the floor, animal feces throughout the home, and the strong smell of cigarette smoke and marijuana. K.F. knew a week in advance that the caseworker was coming for a home visit and she and K.B. were still cleaning whenever the caseworker arrived. The caseworker could tell that "they cleaned up some of the mess, but there was still three or four piles of dog feces on the floor." The kitchen counters were cluttered with dishes and the cookware was coated with food that had obviously "been there for a long time." The condition of the floor was particularly concerning to the caseworker. K.B.'s use of marijuana in the home also presents a safety issue for S.B.

         According to K.F., the reason that the Department was involved with S.B. was due to a complaint that K.B. was smoking marijuana at the hospital after S.B. was born. As far as K.F. knows, K.B. does not smoke marijuana although she is aware that he has tested positive for marijuana. K.F. was unaware that her apartment smells like marijuana. K.F. stated that the Department was also concerned that she and K.B. were living with K.B.'s father because he has a drinking problem and the home was a mess. That is why K.F. and K.B. moved to an apartment in August. K.F. acknowledged that K.B. took an anger control training class and goes to TPC for mental health help, but "he's never really gotten angry with me." K.F. believed that K.B. was also participating in services with the Amarillo Council on Alcoholism and Drug Abuse (ACADA), but the caseworker testified that K.B. was not participating in ACADA services.

         K.F. worked at Pizza Hut, "off and on," from October of 2017 until S.B. was born in February of 2018. After S.B. was born, K.F. worked at Sonic for approximately three months, and then she was employed at Retail Grocery Inventory Services from June to December. She worked at Waffle House in December and January. While working at Waffle House, she also worked at Sanex for about a month. On February 28, she began working at McDonald's.

         K.F. completed her assessment with TPC before her last hearing in December, although the Department did not receive confirmation. K.F. said TPC referred her to Family Support Services for more counseling. According to K.F., she had an appointment for counseling but she had to reschedule "because when she gave me the appointment time, she told me two different appointment times, and I ended up at the wrong one." K.F. completed RBT in June of 2018, but she said that she did not complete her parenting classes, "because CareNet has the parenting classes every Tuesday night from 6:00 to 8:00. I don't have a car. I don't have a way to get home from the parenting classes at 8:00 at night." K.F. asked her caseworker about other options for parenting classes and "she said the only thing they could do is give me bus vouchers." K.F. acknowledged receiving four bus vouchers in December, but she used those vouchers so that she and K.B. could take drug tests that were requested in December. As far as maintaining regular contact with her caseworker, K.F. says she has not done that "[b]ecause she will not answer my phone calls." K.F. completed her psychological evaluation on February 20. She originally scheduled the evaluation for September 11, but she missed that appointment because of a death in the family. K.F. stated that she tried to let her caseworker know that she was having trouble rescheduling the appointment, but she "would not answer my phone calls."

         The last time that K.F. visited S.B. was in August, before S.B. was placed with her paternal grandparents in Arkansas. K.F. said that she has asked her caseworker "multiple times" about making arrangements to visit S.B., stating, "I do not have a vehicle. I cannot get to Arkansas." K.F. has attempted to contact the paternal grandparents, but claims they will not answer her calls. K.F. says she has a bassinet, playpen, changing table, and clothes for S.B. K.F. was not aware that the paternal grandparents want to adopt S.B.

         K.F. has attempted to call her caseworker "at least once a week" but she has only been able to get ahold of her three times. The last time the caseworker visited K.F.'s home was in October. The last time the caseworker spoke with K.F. was December 6, after the court hearing. If K.B. is "handling his stuff, and going to counseling like he needs to, and taking his medications like he needs to, and working through his issues," K.F. does not see a problem with continuing to be with him. If S.B. were returned to K.F., K.F. and her mother would work opposite shifts so that K.F. could take care of S.B. when K.F. was home. K.F. also has a friend who could babysit for her.

         S.B. was placed in the home of her paternal grandparents in Arkansas after their home study was approved. Contrary to K.F.'s assertions, K.F. has not contacted the paternal grandparents to visit S.B. since S.B. was placed with them, but K.F. visited S.B. before she was moved to Arkansas. K.F. has not sent any cards, letters, or gifts to S.B. and she has not asked for assistance with transportation to visit S.B. S.B. is doing "[r]eally well" in her placement. The paternal grandparents are willing to be a long-term placement for S.B. and they are willing to adopt her if parental rights are terminated. The paternal grandparents also have another child of the father's placed in their home. The caseworker testified that it is in S.B.'s best interest that K.F.'s parental rights be terminated because K.F. has made limited progress, she has failed to complete her services, she continues to choose the relationship with K.B. over her relationship with S.B., she minimizes K.B.'s drug use, and the condition of the home. S.B.'s continued placement with her paternal grandparents ensures permanency for S.B.

         On February 21, 2019, the associate judge held a final hearing concerning termination of K.F.'s parental rights to S.B. K.F. did not appear. K.F.'s attorney requested a continuance, which was denied by the associate judge. After testimony, the associate judge terminated K.F.'s parental rights on the grounds set forth in Texas Family Code section 161.001(b)(1)(N) and (O), and found that termination would be in S.B.'s best interest. See Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2018).[6] The court appointed the Department as the managing conservator of S.B.

         K.F. timely filed a request for a de novo hearing before the referring court. The district court held a de novo hearing and K.F. testified. By letter ruling, the district court affirmed the termination of K.F.'s parental rights and signed an order of termination.

         On appeal, K.F. raises five issues challenging the trial court's order of termination of her parental rights.

         Standard of Review

         When reviewing the legal sufficiency of the evidence in a termination case, the appellate court should look at all 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 re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). To give appropriate deference to the factfinder's conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been not credible, but we do not disregard undisputed facts. Id. Even evidence that does more than raise surmise or suspicion is not sufficient unless that evidence is capable of producing a firm belief or conviction that the allegation is true. In re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could have formed a firm belief or conviction that the matter that must be proven was true, then the evidence is legally insufficient and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).

         In a factual sufficiency review, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. We must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the Department's allegations. Id. We must also consider whether disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. Id. If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

         Applicable Law

         Involuntary termination of parental rights is a serious proceeding implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). A parent's right to the "companionship, care, custody, and management" of his or her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick, 685 S.W.2d at 20. However, "the rights of natural parents are not absolute" and "[t]he rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may forfeit his or her parental rights by his or her acts or omissions, the primary focus of a termination suit is protection of the child's best interest. In re T.G.R.-M., 404 S.W.3d 7, 12 (Tex. App.- Houston [1st Dist.] 2013, no pet.).

         In a case to terminate parental rights by the Department under section 161.001 of the Family Code, the Department must establish, by clear and convincing evidence, that (1) the parent committed one or more of the enumerated acts or omissions justifying termination, and (2) termination is in the best interest of the child. § 161.001(b). Clear and convincing evidence is "the 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." § 101.007 (West 2019); In re J.F.C., 96 S.W.3d at 264. 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. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.-Amarillo 2009, pet. denied). "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 at 362. 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 if the evidence also establishes that termination is in the child's best interest. In re K.C.B., 280 S.W.3d at 894-95.

         The clear and convincing evidence standard does not mean the evidence must negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.-Amarillo 1995, no writ.). The reviewing court must recall that the trier of fact has the authority to weigh the evidence, draw reasonable inferences therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the right to resolve credibility issues and conflicts within the evidence and may freely choose to believe all, part, or none of the testimony espoused by any particular witness. Id. Where conflicting evidence is present, the factfinder's determination on such matters is generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.-El Paso 1997, no writ.).

         The appellate court cannot weigh witness credibility issues that depend on demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript, the appellate court must defer to the factfinder's determinations, as long as those determinations are not themselves unreasonable. Id.

         Analysis

         Due ...


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