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In re T.C.

Court of Appeals of Texas, Second District, Fort Worth

December 5, 2019

In the Interest of T.C., a Child

          On Appeal from the 355th District Court Hood County, Texas Trial Court No. D2018046

          Before Kerr, Womack, and Wallach, JJ.

          MEMORANDUM OPINION

          ELIZABETH KERR JUSTICE.

         After a bench trial, the trial court terminated Mother's parental rights to her son Adam[1] after finding four grounds:

• dangerous conditions or surroundings; Tex. Fam. Code Ann. § 161.001(b)(1)(D);
• dangerous conduct; id. § 161.001(b)(1)(E);
• constructive abandonment; id. § 161.001(b)(1)(N);
• failure to comply with a court order; id. § 161.001(b)(1)(O); and that termination was in Adam's best interest. Id. § 161.001(b)(2).[2] On appeal, Mother attacks the legal and factual evidentiary sufficiency supporting all five findings. We affirm.

         Standard of Review

         A. Generally

         In a termination case, the State seeks not just to limit parental rights but to erase them permanently-to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except the child's right to inherit. Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, "[w]hen the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures." In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S.Ct. 1388, 1391-92 (1982)).

         Termination decisions must be supported by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b), § 161.206(a); In re E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012). Due process demands this heightened standard because "[a] parental rights termination proceeding encumbers a value 'far more precious than any property right.'" E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758-59, 102 S.Ct. at 1397). Evidence is clear and convincing if it "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." Tex. Fam. Code Ann. § 101.007; E. N.C. , 384 S.W.3d at 802.

         For a trial court to terminate a parent-child relationship, the party seeking termination must establish, by clear and convincing evidence, that (1) the parent's actions satisfy just one of the many predicate grounds (currently up to 21) that are listed in Family Code Section 161.001(b)(1), and (2) termination is in the child's best interest under Section 161.001(b)(2). Tex. Fam. Code Ann. § 161.001(b)(1), (2); E. N.C. , 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

         Regarding subsection 161.001(b)(1) grounds, the supreme court recently articulated an important qualification: if the trial court finds grounds under subsection (b)(1)(D) or (E)-and an appellant challenges either the (D) or (E) grounds, both of which involve endangering a child's physical or emotional well-being-an appellate court must review the (D) or (E) grounds on appeal because they have potential collateral consequences for other children the parent may have. See Tex. Fam. Code Ann. § 161.001(b)(1)(M) (providing that a prior termination under (D) or (E) is a ground for terminating parental rights to a different child); In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) ("[I]f a court of appeals affirms the termination on either [(D) or (E)] grounds, it must provide the details of its analysis.").[3] Termination may not be based solely on the child's best interest as determined by the factfinder under section 161.001(b)(2). Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.-Fort Worth 2012, no pet.).

         B. Legal Sufficiency

         In evaluating the evidence for legal sufficiency in parental-termination cases, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that the Department of Family and Protective Services proved both the particular ground for termination and that termination was in the child's best interest. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); see In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding and judgment, and we resolve any disputed facts in favor of the finding if a reasonable factfinder could have done so. J.F.C., 96 S.W.3d at 266. We also must disregard all evidence that a reasonable factfinder could have disbelieved, in addition to considering undisputed evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to termination if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. See id. In doing our job, we cannot weigh witness-credibility issues that depend on the witness's appearance and demeanor; that is the factfinder's province. J.P.B., 180 S.W.3d at 573. And even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are not unreasonable. Id.

         C. Factual Sufficiency

         We must perform "an exacting review of the entire record" in determining whether the evidence is factually sufficient to support terminating a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In a factual-sufficiency review, we give due deference to the factfinder's findings and do not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent violated an alleged ground and that termination was in the child's best interest. Tex. Fam. Code Ann. § 161.001(b); see In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). 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 in the truth of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

         The Evidence

         A. The Department learns that Mother is using drugs and places Adam with Uncle.

         Law enforcement made a welfare check on Mother's residence in September 2017 and found her under the influence of some substance. When questioned, Mother admitted having used methamphetamines two days earlier.

         On the same date, the Department received an intake alleging child abuse or neglect. Based on Mother's admission during the welfare check, the Department created a safety plan for Adam. What concerned the Department was Mother's methamphetamine use and her ability to watch Adam.

         Leaving a child with someone using methamphetamines was dangerous; a Department investigator testified,

They can be-the supervision can be neglected after extensive use of methamphetamines whenever they go into increasing amounts of sleep. Sexual abuse has been known to occur because of a-an extensive sexual drive that methamphetamines has been known to create as well. Exposure is one of the biggest risks. Exposing a kiddo to methamphetamines-or, excuse me, a child, can-exposing them in their-while they're developing to methamphetamines can impact their development and growth.

         The Department wanted Adam placed somewhere safe-somewhere other than with Mother. Adam's father was incarcerated in Kentucky and was thus not a placement option. Placement with Grandmother and Stepgrandfather was not an option either because Mother lived with them.

         Ultimately, Mother signed a document authorizing the Department to place Adam with Uncle. As part of the plan, Mother could have no unsupervised contact with Adam and could visit him once a week when Uncle and his wife were available.

         The next day, the Department received a second intake based on allegations that Adam was shaking at school and was filthy. He also had issues with toilet training and his speech. Adam was six years old at the time.

         B. The Department learns about Mother's bipolar diagnosis and enters a new safety plan.

         At some point, Mother disclosed that she had been diagnosed as bipolar with cannabis and stimulant use. So, in addition to her drug use, the Department had concerns about Mother's mental health and her failure to take her medications. In response to these new concerns, Mother checked herself into Mesa Springs, a psychiatric hospital, in October 2017.

         Later that same month, the Department created a second safety plan that addressed Mother's mental health issue in addition to her drug use. As before, Adam was to stay with Uncle, and Mother was to have no unsupervised contact.

         C. The Department moves Mother's case to Family Based Safety Services.

         Terry Johnson of Family Based Safety Services (FBSS), [4] Investigator Kelsey Jordan, Mother, and Grandmother had a "joint visit" in early December 2017. A "joint visit" occurs when the Department transfers a case from an investigation status to FBSS.

         When asked to describe Mother's behavior during the joint visit, Johnson responded:

She was very fidgety and shaky. She couldn't stay on-she couldn't track anything that we were talking about. She left the room a couple of times and brought back boxes of documents that she wanted to show me. At one point she was talking about how she had had issues with her back. She turned around, pulled her shirt up over her head so I could see it while she bent over, which was not a normal behavior.

         In short, "She was unfocused." Johnson also saw scabbing on Mother's arms and described Mother as having bad teeth and being very thin. These observations led Johnson to conclude, "In my opinion she was actively using at that time. I believe she was high at that time."

         After the meeting, Mother went to have a hair-strand test, and the test results came back positive for methamphetamines and amphetamines. Mother's methamphetamine levels were 4, 776-a level that indicated to Johnson that Mother frequently used methamphetamines.

         D. Mother moves to Florida.

         Within two weeks of the joint visit in early December 2017, Mother disappeared. Grandmother's understanding was that Mother had gone to Florida.

         Although Mother had physically vanished, she would leave voicemails for Johnson. In February 2018, Mother left one in which she sounded lucid and stated that she was working. In the voicemail, Mother indicated that she was in Florida but said nothing about returning to Texas.

         Locating Mother in Florida proved difficult. Mother never gave Johnson a valid Florida address. Mother gave Johnson one address, but when he asked the Florida sheriffs to do a welfare check, the results left him stymied.

         In later conversations that Johnson had with Mother, she stated that she was not planning on returning to Texas because she believed that Grandmother had hired hit men to kill her. Johnson thought that Mother was paranoid, a frequent characteristic of methamphetamine use according to him.

         Describing other conversations with Mother, Johnson said that she was "[u]nfocused" and "[a]ngry." Communicating with Mother was challenging: "She was very tangential. We couldn't hold a conversation. If I tried to speak to her about something, she would just get loud and talk over me, just ...


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