Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 320th District Court Potter County, Texas
Trial Court No. 91, 359-D, Honorable Pamela C. Sirmon,
QUINN, C.J., and PIRTLE and PARKER, JJ.
C. PARKER JUSTICE.
accelerated appeal, appellant, K.F., seeks reversal of the
trial court's judgment terminating her parental rights to
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.
and her boyfriend, K.B., were living with K.F.'s mother
when S.B. 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. 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.
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.
after S.B. was removed, the Department was contacted by D.B.,
claimed to be S.B.'s father. After genetic testing, an
order was entered adjudicating D.B. the father of S.B.
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 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."
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.
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."
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. 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.
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.
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.
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.
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.
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."
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.
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.
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
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). The court appointed the
Department as the managing conservator of S.B.
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.
appeal, K.F. raises five issues challenging the trial
court's order of termination of her parental rights.
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
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.
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.).
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.
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.).
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.