Court of Appeals of Texas, Third District, Austin
F. C., Jr. and A. R., Appellants
Texas Department of Family and Protective Services, Appellee
THE 146TH DISTRICT COURT OF BELL COUNTY NO. 295, 562-B, THE
HONORABLE JACK WELDON JONES, JUDGE PRESIDING
Justices Goodwin, Baker, and Kelly
J. Baker, Justice.
Jr. (Father) and A.R. (Mother) appeal the trial court's
final decree terminating their parental rights to their
triplets, who were almost two at the time of trial. Father
and Mother each assert that the trial court made erroneous
evidentiary rulings and improperly denied their motions for
mistrial and that the evidence is legally and factually
insufficient to support the jury's termination findings.
For the following reasons, we will affirm the trial
court's final termination decree.
Department filed a petition to terminate Mother's and
Father's parental rights to the children in September
2017. An associate judge conducted a bench trial on August
28, 2018, after which it rendered a decree terminating both
parents' rights to the children. Mother and Father each
filed requests for a de novo hearing and jury trial.
See Tex. Fam. Code §§ 201.012 (providing
for de novo hearing of associate judge's order), .015(i)
(providing for jury trial in de novo hearing if jury trial
did not occur in prior proceeding). The district court
conducted a four-day jury trial in July 2019, after which it
rendered a final decree terminating both parents' rights
to the children. Mother and Father filed motions for new
trial, which were denied by operation of law, and then
notices of appeal.
court may terminate a parent's rights to his or her child
if clear and convincing evidence shows: (1) the parent has
committed conduct that amounts to a statutory ground for
termination, and (2) termination of the parent's rights
would be in the child's best interest. Id.
§ 161.001; In re S.M.R., 434 S.W.3d 576, 580
(Tex. 2014). In reviewing the legal sufficiency of the
evidence in such a case, we look at all the evidence in the
light most favorable to the finding to determine whether a
reasonable factfinder could have formed a firm belief or
conviction that the finding was true. In re J.P.B.,
180 S.W.3d 570, 573 (Tex. 2005). We assume that the
factfinder resolved disputed facts in favor of the finding if
a reasonable factfinder could do so, and we disregard all
evidence that a reasonable factfinder could have disbelieved
or found to be incredible. Id.; see In re
K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014). We
"should not disregard undisputed facts that do not
support" the determination, and "even evidence that
does more than raise surmise and suspicion will not suffice
unless that evidence is capable of producing a firm belief or
conviction that the allegation is true."
K.M.L., 443 S.W.3d at 113.
evaluating factual sufficiency, we view the entire record and
uphold the finding unless the disputed evidence that could
not reasonably have been credited in favor of a finding is so
significant that the factfinder could not reasonably have
formed a firm belief or conviction that the Department's
allegations are true. In re A.B., 437 S.W.3d 498,
502-03 (Tex. 2014). We defer to the factfinder's
reasonable determination on issues of credibility that
involve an evaluation of appearance or demeanor.
J.P.B., 180 S.W.3d at 573; see A.B., 437
S.W.3d at 503 (requiring reviewing court to defer to
"factfinder, who, having full opportunity to observe
witness testimony first-hand, is the sole arbiter when
assessing the credibility and demeanor of witnesses").
review a trial court's evidentiary rulings for abuse of
discretion. Southwest Energy Prod. Co. v.
Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016). The
appellate court may reverse a trial court's judgment
based on an error in the admission or exclusion of evidence
only if the appellate court concludes that the trial court
made an error of law that probably caused the rendition of an
improper judgment. Tex.R.App.P. 44.1(a)(1). Similarly, we
review a trial court's ruling on a motion for mistrial
for abuse of discretion, upholding the ruling if it is within
the "zone of reasonable disagreement." S.A.,
Jr. v. Texas Dep't of Family & Protective
Servs., No. 03-17-00790-CV, 2018 WL 1096012, at *2 (Tex.
App.-Austin Mar. 1, 2018, no pet.) (mem. op.).
OF THE EVIDENCE
testimony and other admitted evidence relevant to the
jury's statutory-predicate and best-interest findings was
of CPS investigator
investigator testified that she became involved with this
case in September 2017 after the Department received a report
that Mother had been in a car accident while pregnant with
triplets, left the hospital after the accident against
doctor's orders, and had reported use of methamphetamine
and marijuana while pregnant. The investigator testified that
Mother told her at their initial meeting that she had used
methamphetamine, marijuana, and Adderall during her pregnancy
even after she knew that she was pregnant.
of CPS conservator for the triplets
conservator for the triplets testified that the court-ordered
Family Service Plan required Mother and Father to take any
kind of drug test the Department required, at any time. On
several occasions Father refused to take the oral-swab drug
tests that the conservator required of him as a condition of
having visitations with the triplets; his refusal resulted in
his being unable to have the corresponding visitation. The
Department considers a refusal to take a drug test a
"positive" test, and the Department switched to
having Father submit to oral-swab tests because of its
concerns about his continued drug use and his attempts to
cheat on the tests, which information the conservator
obtained from the triplets' caregivers. Father was unable
to demonstrate that he had a safe, suitable home for the
triplets because he would not allow the conservator to visit
his home and did not complete his court-ordered counseling.
Mother did not complete her court-ordered counseling and did
not stop using drugs, as required by the Family Service Plan.
trial, it had been about a year since either Mother or Father
had seen the triplets. In February 2018 the Department's
permanency goal changed from family reunification with a
concurrent goal of relative placement to adoption after
Mother tested positive a few times for methamphetamine and
Father had a methamphetamine-positive hair-follicle test. The
change to the adoption goal was an effort to provide the
triplets more permanency and stability.
of the guardian ad litem
children's guardian ad litem testified that she believed
it was in their best interest that the parental rights of
Mother and Father be terminated. She explained that
permanency and stability is of the utmost importance to these
young children and that Mother had been unsuccessful after
two attempts at outpatient drug rehabilitation during the
pendency of this case. She explained that the alternative to
termination-permanent managing conservatorship-was not a good
option because it would not provide the triplets with the
stability that they need because of the potential for Mother
and Father to "come and go" in the children's
of triplets' maternal great-grandmother
triplets' maternal great-grandmother testified that she
was concerned about Mother's and Father's drug use,
an example being when she saw what she understood to be an
attempt by Mother and Father to cheat on Father's drug
test. She decided that because of their continuing drug use,
Mother and Father could no longer have visits with the
triplets at the foster parents' (her grandson and his
wife's) house, where she spent much time caring for the
testified that she did not know that Father had been using
methamphetamine except for a period "way back"
before he was placed on probation in 2015. She said that she
last used methamphetamine in October 2018. She explained that
she was "clean" at the time of the triplets'
birth but that the meconium test-which was positive for
methamphetamine-"goes back 6 months." She said she
had used methamphetamine while pregnant only until she found
out she was pregnant, at around three or four months along.
However, she continued to use marijuana during her pregnancy
because she informed her doctor about her use but the doctor
did not tell her to stop. She admitted that the use of
methamphetamine and marijuana during pregnancy endangered the
well-being of the babies.
admitted to having taken two drug tests during the pendency
of this case that were positive for methamphetamine. She
testified that she went into rehab three times since this
case began, the last time being inpatient treatment about a
year after the triplets were removed. The Family Service Plan
allowed her to have visits with her children, supervised by
her grandmother, as long as she kept having clean drug tests;
those visits ceased when she started using drugs again and
refused to take oral-swab tests required by the Department.
She testified that she has been continuing to submit to drug
tests on her own initiative and at her own expense since the
Department ceased requiring them of her and that the tests
have shown she is "clean." The trial court admitted
into evidence some of her recent clean tests.
testified that she has another child, age nine, of whom she
lost custody to the child's father when the boy was two
years old. She sees the boy a couple of times a year and does
not pay any child support. She did not pay any child support
for the triplets over the last year, claiming that she did
not know how to reach their foster parents and did not know
that she was obligated to provide for the children.
admitted that she stopped going to court-ordered therapy
because she believed her therapist was too judgmental.
testified that he was currently serving a ten-year term of
probation after he received a 2015 deferred adjudication for
possession of methamphetamine and assault on a public
servant. He explained that he stopped using methamphetamine
when Mother found out she was pregnant, around mid-2017. He
testified that he last used methamphetamine several months
before February 13, 2018, when he tested positive for
methamphetamine through a hair-follicle test. He explained
that he stopped taking the oral-swab drug tests that the CPS
conservator asked him to take because he did not trust her;
he understood that his visitation with the triplets would
cease due to his refusal to take the oral-swab tests. He said
that he last paid child support about a year prior to the
trial and that while he had offered to pay the foster parents
child support, they refused to accept anything from him. He
admitted that he had not tried to send money or any other
form of support to the foster parents through his attorney.
He also admitted that he had failed to pay child support
regularly for his three children from a prior relationship
and that their mother and the attorney general had filed an
enforcement action against him to collect the arrears.