Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 355th District Court Hood County, Texas Trial
Court No. D2018046
Kerr, Womack, and Wallach, JJ.
ELIZABETH KERR JUSTICE.
bench trial, the trial court terminated Mother's parental
rights to her son Adam after finding four grounds:
• dangerous conditions or surroundings; Tex. Fam. Code
Ann. § 161.001(b)(1)(D);
• dangerous conduct; id. §
• constructive abandonment; id. §
• 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). On appeal, Mother attacks the legal and
factual evidentiary sufficiency supporting all five findings.
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)).
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.
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).
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."). 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.).
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.
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
The Department learns that Mother is using drugs and places
Adam with Uncle.
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.
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.
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.
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.
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.
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.
The Department learns about Mother's bipolar diagnosis
and enters a new safety plan.
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.
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.
The Department moves Mother's case to Family Based Safety
Johnson of Family Based Safety Services (FBSS),
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.
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.
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."
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
Mother moves to Florida.
two weeks of the joint visit in early December 2017, Mother
disappeared. Grandmother's understanding was that Mother
had gone to Florida.
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.
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.
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.
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 ...