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holding evidence insufficient for constructive abandonment when there was no evidence, other than conclusory opinions, regarding father's financial resources, employment history, home environment, parenting skills, or ability or inability to care for the child
Summary of this case from In re D.P.G.Opinion
No. 06-16-00087-CV
04-06-2017
IN THE INTEREST OF J.L.G., A CHILD
On Appeal from the 6th District Court Lamar County, Texas
Trial Court No. 84799 Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION
After a bench trial in October 2016, Terri's and Cal's parental rights to their child, J.L.G., were terminated, and the Texas Department of Family and Protective Services (TDFPS) was appointed as J.L.G.'s permanent managing conservator. Both Terri and Cal appeal these terminations and challenge the sufficiency of the evidence supporting the trial court's findings as to the statutory grounds for termination and its finding that termination is in the best interest of J.L.G. We affirm the trial court's judgment as to Terri, but reverse it as to Cal, because (1) on appeal, Terri does not challenge termination grounds (D) and (E); (2) sufficient evidence supports the finding that terminating Terri's parental rights was in J.L.G.'s best interest; (3) no evidence supported terminating Cal's rights on termination grounds (D) or (E); (4) evidence was legally insufficient to support terminating Cal's rights on ground (N), and (5) evidence was legally insufficient to support terminating Cal's rights on termination ground (O).
We refer to the child by its initials and to the child's relatives by fictitious names to protect the privacy of the child. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
The trial court found that the evidence supported terminating both Terri's and Cal's parental rights under Section 161.001(b)(1) subsections (D), (E), (N) and (O) of the Texas Family Code. TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O) (West Supp. 2016). Though no point of error targets any specific ground for termination, each parent argues the insufficiency of the evidence to support a finding on one or more of the predicate grounds for terminating parental rights. Those are detailed and addressed, as appropriate, as to each parent in turn.
"The natural right existing between parents and their children is of constitutional dimensions." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Indeed, parents have a fundamental right to make decisions concerning "the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65 (2000). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial." In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). This Court is therefore required to "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. at 500. "[I]nvoluntary termination statutes are strictly construed in favor of the parent." In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick, 685 S.W.2d at 20).
To terminate parental rights of any parent, the trial court must find, by clear and convincing evidence, that such parent is guilty of at least one statutory ground for termination and that termination is in the child's best interest. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012). "Clear and convincing evidence" is that "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." TEX. FAM. CODE ANN. § 101.007 (West 2014); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). This standard of proof necessarily affects our review of the evidence.
In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.). We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted. J.P.B., 180 S.W.3d at 573.
In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing. In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam). We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine "whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations." Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002). "If, in light of the entire record, the disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." J.F.C., 96 S.W.3d at 266. "[I]n making this determination," we must undertake "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." A.B., 437 S.W.3d at 503 (quoting C.H., 89 S.W.3d at 26).
Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, "the rights of natural parents are not absolute; protection of the child is paramount." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). "A child's emotional and physical interests must not be sacrificed merely to preserve parental rights." In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).
(1) On Appeal, Terri Does Not Challenge Termination Grounds (D) and (E)
"Only one predicate finding under Section 161.001(b)(1) is necessary to support a judgment of termination when there is also a [sustainable] finding that termination is in the child's best interest." In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting A.V., 113 S.W.3d at 362); In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.)); see In re N.R., 101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003, no pet.). Assuming a valid best-interest finding, when the trial court finds more than one predicate ground for termination, we will affirm if any one ground is supported by sufficient evidence. In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.).
In this case, Terri makes a general challenge to the sufficiency of the evidence supporting termination, but does not specifically challenge any of the grounds. Broadly interpreting her brief, we find Terri's challenge to the sufficiency of the evidence supporting the trial court's findings does not address the evidence as to grounds (D) and (E). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). Since Terri makes no challenge to the trial court's findings with respect to grounds (D) and (E), it is unnecessary to review the sufficiency of the evidence as to the predicate grounds for terminating Terri's parental rights. See K.W., 335 S.W.3d at 769; A.V., 113 S.W.3d at 362. (2) Sufficient Evidence Supports the Finding that Terminating Terri's Parental Rights Was in J.L.G.'s Best Interest
Terri's sole point of error states, "There was insufficient evidence for the court to terminate the parent-child relationship between [Terri] and J.L.G.[,] a child the subject of the case at bar." In her argument, Terri does not distinguish between challenging the predicate grounds for termination findings and the best-interest finding, but makes one argument that we construe to be challenging the best-interest finding, as well as challenging the findings with respect to grounds (N) and (O).
The evidence here showed that, in 2013, Terri had another child, C.L., removed by TDFPS when Terri overdosed on methamphetamine and went to the emergency room. Terri did not complete her service plan in that case and did not regain custody of C.L. Terri's grandmother was named permanent managing conservator of C.L. in 2015. Kristyn Anderson, a caseworker for Child Protective Services (CPS), testified that J.L.G. was born June 6, 2015, and was removed from Terri September 9, 2015, as a result of drugs and domestic violence. Anderson testified that Terri admitted that she had been using drugs and was a victim of domestic violence. Terri also admitted using drugs during both of her pregnancies. Anderson also testified that Terri has been incarcerated during the entire pendency of this case. She explained that Terri had been on four years' community supervision for forgery, which was revoked in September 2015 as a result of Terri's continued drug use. In October 2015, Terri was sent to state jail and SAFP. Anderson testified that, after completing SAFP, Terri went to a halfway house in May 2016, but left and was subsequently sentenced to serve fourteen months in state jail. She testified that, if Terri had not left the halfway house, she could have been released in August 2016.
Substance Abuse Felony Punishment. See TEX. CODE CRIM. PROC. ANN. art. 42A.303 (West Supp. 2016).
Anderson also testified that Terri had a court-ordered service plan that required her to undergo a psychological evaluation, take random drug testing, complete a drug assessment and treatment program, and take parenting classes. She said that Terri had the opportunity in her facility to take parenting classes, complete drug treatment, and obtain individual counseling. Terri did not obtain counseling or a psychological evaluation, and, since she left her halfway house, she did not complete her drug treatment. Although Terri claimed to have taken parenting classes, she never provided Anderson with a certificate of completion. Anderson also testified that the case had been extended in June 2016, because she was then in the halfway house and was supposed to be released August 23, 2016. She agreed that, if Terri had followed the halfway house rules, she would have been released and would have been able to work all of her services. In addition, she testified that Terri had not visited J.L.G. during the case and would have been able to visit him if she had not left the halfway house.
Anderson opined that it is in the best interest of J.L.G. that Terri's parental rights be terminated, since she has demonstrated a lack of stability and an incapacity to remain drug-free over a period of three years and has not demonstrated an ability to parent or to provide a safe, stable, and drug-free home for J.L.G. She also testified that J.L.G. has been in the care of Terri's aunt and uncle, Jamie and Doug, that he has done very well under their care, that he is well adjusted, and that he is bonded to their entire family. She opined that it would be traumatic for J.L.G. to be removed from Jamie and Doug, since they are the only family he has known and since J.L.G. has no relationship with either Terri or Cal.
Terri admitted that, in 2012, she had received deferred adjudication on a forgery charge, which was subsequently adjudicated when she tested positive for methamphetamine use. She also testified that she knew using drugs was a violation of her community supervision and that she would test positive if she used drugs, but did it anyway. On October 15, 2015, she was sent to a SAFP facility. She admitted that she received a fourteen-month sentence when she absconded from the halfway house and that, if she had not absconded, she would have been released and could have worked her services. She admitted that she did not complete her psychological evaluation and counseling and had failed to establish a stable home environment, all as a result of her own conduct. She also admitted that, since she did not complete her time at the halfway house, she did not complete her drug treatment program. She testified that she is projected to be released in August 2017.
Terri explained that she had been given a twenty-four-hour pass from her halfway house in Fort Worth and had come to Paris. On her way back to Fort Worth, she experienced car trouble and called to let them know she would be late. After being told that she would have to talk with her community supervision officer before she could return, Terri waited two days before calling her community supervision officer, who got her community supervision revoked as a result. She waited another four days before turning herself in to her community supervision officer. She said that, during those four days, she visited with her mother and with C.L., but that she did not try to visit J.L.G.
Terri testified that she is currently in state jail, is taking GED and parenting classes, and is participating in the Changes and Celebrate Recovery programs. She said that she is trying to change her life and behavior and does not want drugs in her life. She agreed with Jamie and Doug taking care of J.L.G. until she got out of jail, but did not want them to adopt him, or to have her parental rights terminated. She also was agreeable with Jamie and Doug being named permanent managing conservators if she could have visitation. She was confident she could find work with her GED. She also testified that she would not get involved with Cal until he can prove he can get off drugs and better himself. She admitted, however, that she did not know if Cal is still involved with drugs.
Jamie testified that her husband, Doug, is Terri's uncle. J.L.G. has been in their care for fourteen months, and he has bonded with their family, especially their daughter, Esther, who is nine months older. She testified that, when J.L.G. first came into their care, he appeared to be going through drug withdrawals and that he is still four months behind developmentally. She opined that J.L.G. would regress if he was not with them. In her opinion, it is in his best interest to terminate the parental rights of both parents because J.L.G. needs stability, which he would have with her and her family since he is already bonded with them. She opined that stability could only be maintained by adoption. She did not think it would be beneficial to wait another year for Terri to rehabilitate. She acknowledged that she does not know Terri that well, but that Terri had told her about one instance of domestic violence. She also acknowledged that she does not know Cal.
Deanna Nickerson also testified. She opined that termination of Terri's parental rights is in J.L.G.'s best interest, since Terri has made no effort to change and has exhibited the same behavior in both of her CPS cases. She said that Terri had been given extensions in both cases, yet had not completed her services in either of them. She also testified that Terri struggled to maintain a home for herself and that Terri had been through community supervision, SAFP, and two CPS programs to try to get her off of drugs and modify her behavior, but none of them had worked. She added that, if J.L.G. is adopted, there would be a monthly adoption payment, college funds, and Medicaid available for him.
The record identifies Nickerson only as "the supervisor at the ongoing legal unit." However, she is identified in Terri's brief as the supervisor of the legal unit at CPS and in TDFPS's brief as a TDFPS supervisor.
"There is a strong presumption that keeping a child with a parent is in the child's best interest." In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus Christi Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam)). "Termination 'can never be justified without the most solid and substantial reasons.'" In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).
In determining the best interests of the child, we consider the following Holley factors:
(1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals, (6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.Id. at 818-19 (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)); see In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012); see also TEX. FAM. CODE ANN. § 263.307(b) (West Supp. 2016). It is not necessary to prove all of these factors as a condition precedent to parental-rights termination. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); N.L.D., 412 S.W.3d at 819. Evidence relating to a single factor may suffice in a particular situation to support a finding that termination is in the best interests of the child. In re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.) (citing In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256, 267 n.39 (Tex. 2002)). When considering the child's best interest, we may take into account that a parent is unable to provide adequate care for a child, lacks parenting skills, or exercises poor judgment. In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.). Parental drug abuse, which reflects poor judgment, is also a factor that may be considered when determining the child's best interest. In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.). Further, the amount of contact between the parent and child, the parent's failure to provide financial and emotional support, any continuing criminal history, and the past performance as a parent are all relevant in determining the child's best interest. See C.H., 89 S.W.3d at 28. We will address those Holley factors for which there is relevant evidence. See Holley, 544 S.W.2d at 371-72.
It is undisputed that J.L.G. is bonded with his relative placement and that he has had no contact with Terri since he was two months old. However, he is too young to express his desires. Therefore, this Holley factor is neutral.
It can be reasonably inferred from the testimony that the physical and emotional needs of J.L.G. are being met by his current placement with relatives and that he is being provided a safe and stable home environment. In contrast, Terri admitted that he was removed from her care as a result of her drug use and domestic violence in her home. In addition, Terri admitted that she used methamphetamine during her pregnancies with both C.L. and J.L.G. Because of her actions, both before and during the pendency of this case, Terri was, and remains, incarcerated. Several witnesses expressed concern that Terri continued the same behavior that caused both of her children to be removed. Drug use and its effect on a parent's life, her ability to parent, and her conduct that subjects her to repeated incarcerations are relevant to determining whether she has been, and will be, able to meet the emotional and physical needs of her child. See In re M.C., 482 S.W.3d 675, 689 (Tex. App.—Texarkana 2016, pet. denied). Although Terri sought to assure the trial court that she had changed, the trial court, as fact-finder, could reasonably place more weight on her conduct that led to her continued incarceration and conclude that Terri would not be able to meet the physical and emotional needs of her children. The second and third Holley factors weigh in favor of termination.
The testimony showed that there would be financial, educational, and medical programs available to J.L.G. if he is adopted by Jamie and Doug. Also, although services were available to Terri to address her drug problems and any emotional, psychological, and parenting issues during the time she was in a SAFP facility and the halfway house, Terri failed to complete any of these. The evidence also showed that the case had been extended to enable Terri to complete her services after her release from the halfway house. Terri admitted that she had not completed these services because she absconded from the halfway house and was returned to state jail. Although Terri testified that she was participating in some of these programs at state jail, the trial court could reasonably give this testimony little credence based on her prior conduct. The fifth Holley factor weighs in favor of termination.
TDFPS expressed its plan for adoption by relatives Jamie and Doug. The testimony showed that J.L.G. had been living with them for fourteen months, that he was bonded with them and their children, that his needs were being met, and that he was being provided with a stable home environment. Terri was agreeable with J.L.G. remaining with Jamie and Doug until she is released from state jail, but proposes that he be returned to her at that point. She had vague plans to get a job and did not suggest that she had any plan to provide J.L.G. with a safe and stable home. Other witnesses were concerned, based on Terri's conduct, that she would not be able to support J.L.G. or to provide him with a stable and drug-free home. The sixth and seventh Holley factors weigh in favor of termination.
Terri's admitted using drugs during her pregnancy with J.L.G. and after his birth. She also admitted to continued drug use while she was on community supervision, knowing that such continued use could cause her community supervision to be revoked and her to be incarcerated. Further, even though Terri was free for at least six days between her twenty-four-hour pass and turning herself in to her community supervision officer, she made no attempt to visit J.L.G. These acts and omissions indicate the lack of a proper parent-child relationship. This factor also weighs in favor of termination.
There is sufficient evidence to support the trial court's finding that termination of Terri's parental rights is in the best interest of J.L.G. Therefore, we overrule this point of error.
(3) Legally Insufficient Evidence Supported Terminating Cal's Rights on Termination Grounds (D) or (E)
When terminating a parent's right to his or her children, the proof supporting termination must be sufficient as to each parent whose rights are sought to be terminated. See, e.g., M.R., 243 S.W.3d at 818-19.
Cal's sole point of error states, "The evidence was legally and factually insufficient to support the court's finding that termination of [Cal]'s parental rights was in the best interest of the child." However, in his argument, Cal addresses the insufficiency of the evidence to support the trial court's findings under statutory grounds (D), (E), (N), and (O), as well as the best-interest finding. In its brief, TDFPS also addressed the sufficiency of the evidence supporting the trial court's findings terminating Cal's parental rights under grounds (D), (E), and (O). We will review the evidence as to each of the four grounds for termination.
Regarding Cal, Anderson testified that Cal was also involved in another CPS case involving a child, T.G. She testified that Cal had a service plan in that case, but did nothing. Also, in the prior case, Cal tested positive, on July 23, 2015, for marihuana in a urine analysis, and for methamphetamine in a hair follicle test. She also testified that Cal had not provided any support for the child during the pendency of the case. However, she admitted that he had not been ordered to pay child support. She stated that Cal did not have court-ordered visitation and that he had not attempted to get visitation with J.L.G. According to Anderson, Cal had a service plan ordered by the court but had not completed any services under the plan. However, she admitted that she has a question about Cal's ability to read. Though she testified that she mailed the service plan to Cal on two occasions, she admitted that she was concerned that he might not be able to read and understand it. She explained that she had read him his service plan in the previous case, which was the same as the one in this case—though there was no suggestion that anyone told Cal that the two plans were the same. Anderson also agreed that Cal could have found someone to read the service plan to him. She recounted that she had left her card on Cal's door two or three times a month during the case, but that he never contacted her. She also testified that she made contact with several people at his residence, including making contact a few times with his mother. She finally made face-to-face contact with Cal a week before the final hearing. At that time, she tried to get him to come with her to see his attorney, but Cal spoke to him on the telephone instead. She testified that Cal had not attended any hearings in the case.
Although notified of the final hearing, Cal did not attend. However, Cal was represented at the final hearing, as well as at preliminary hearings, by his appointed counsel.
Anderson opined that termination of Cal's parental rights was in the best interest of J.L.G. because Cal had engaged in conduct that endangered the child and had constructively abandoned the child. She testified that Cal had not shown any stability or ability to care for the child. She also testified that Cal had not given her any plans for J.L.G.
Terri testified that she had admitted to her caseworker that Terri had used methamphetamine with Cal. She testified that Cal smoked and injected methamphetamine. She also testified that, when Cal was drunk, he had punched her in the mouth at his residence. She asserted that Cal knew that J.L.G. was in State custody, but did not have an opinion as to whether he would be an appropriate caregiver. She did not think that Cal could have read the service plan and legal papers or could have understood them unless they were explained to him.
Terri also testified that she would not get involved with Cal after her release from custody until he can prove he can get off drugs and better himself. She admitted, however, that she did not know if Cal is still involved with drugs.
Parental rights may be terminated pursuant to ground (D) when the parent has "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." TEX. FAM. CODE ANN. §161.001(b)(1)(D). This ground "requires a showing that the environment in which the child is placed poses a danger to the child's physical or emotional health, and it permits termination based on a single act or omission by the parent." In re E.W., 494 S.W.3d 287, 295 (Tex. App.—Texarkana 2015, no pet.) (quoting In re N.B., No. 06-12-00007-CV, 2012 WL 1605457, at *9 (Tex. App.—Texarkana May 8, 2012, no pet.) (mem.op.) (footnote omitted)). "[A]busive or violent conduct by a parent or other resident of a child's home can produce an environment that endangers the physical or emotional well-being of a child." In re B.E.T., No. 06-14-00069-CV, 2015 WL 495303, at *5 (Tex. App.—Texarkana Feb. 5, 2015, no pet.) (mem. op.) (quoting In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied)). Also, illegal drug use by a parent likewise supports the conclusion that the children's surroundings endanger their physical or emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see N.B., 2012 WL 1605457, at *9.
Parental rights may be terminated based on ground (E) when the parent has "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." TEX. FAM. CODE ANN. §161.001(b)(1)(E). To show ground (E), evidence is required of "'a voluntary, deliberate, and conscious course of conduct by the parent' establishing that the parent has engaged in conduct which endangers the physical or emotional well-being of the child." E.W., 494 S.W.3d at 295 (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied)). Termination pursuant to ground (E) "must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required." O.R.F., 417 S.W.3d at 37 (quoting Perez, 148 S.W.3d at 436). A parent's drug use can establish an endangering course of conduct. M.C., 482 S.W.3d at 685. A history of drug and alcohol abuse that subjects a child to a life of uncertainty and instability may be conduct that endangers a child's physical and emotional well-being. In re A.B., 125 S.W.3d 769, 777 (Tex. App.—Texarkana 2003, pet. denied).
Grounds (D) and (E) both require a showing of endangerment. "'Endanger' . . . 'means to expose to loss or injury . . . .'" N.S.G., 235 S.W.3d at 367 (quoting Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). It is not necessary that the conduct be directed at the child or that the child actually suffer injury; rather, it is sufficient that the child's well-being is jeopardized or exposed to loss or injury. Boyd, 727 S.W.2d at 533; N.S.G., 235 S.W.3d at 36.
As Cal points out, there is little evidence regarding Cal's conduct. Terri testified that she used methamphetamine with Cal and that Cal both smoked and injected methamphetamine. There is also evidence that Cal tested positive for methamphetamine and marihuana one time in his previous CPS case. However, there is no evidence that Cal used methamphetamine more than once or when Terri used it with him. Also, there is no evidence of Cal's history of drug use or that he has used drugs since using them with Terri that one time. Further, there is no evidence that Cal occupied a residence with Terri and J.L.G. or that he used illegal drugs in the presence of J.L.G. In addition, although the testimony shows that Terri admitted using drugs both during her pregnancy with J.L.G. and in his presence after his birth, there is no evidence that Cal had any knowledge of Terri's use of drugs during and after her pregnancy with J.L.G.
In its brief, TDFPS points to the affidavit in support of removal attached to TDFPS' original petition as evidence that Cal used methamphetamine with Terri in the presence of J.L.G. However, "instruments attached to pleadings are not evidence unless they are introduced as such." E.W., 494 S.W.3d at 296 (quoting Ceramic Tile Int'l, Inc. v. Balusek, 137 S.W.3d 722, 725 (Tex. App.—San Antonio 2004, no pet.)). Further, although the trial court may take judicial notice of documents in its file, as it did in this case, "it 'may not take judicial notice of the truth of factual statements and allegations contained in the pleadings, affidavits, or other documents in the file.'" Id. (quoting Kenny v. Portfolio Recovery Assocs., LLC, 464 S.W.3d 29, 34, (Tex. App.—Houston [1st Dist.] 2015, no pet.) (quoting Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.))).
While Terri testified to one incident in which Cal struck her in the mouth when he was drunk, there is no evidence that Cal was violent with Terri on any other occasion and no evidence of when this incident occurred. Further, there is no evidence that this incident took place at Terri's residence or in the presence of J.L.G. Although there was testimony that part of the reason for the removal of J.L.G. was a concern about domestic violence, there is no evidence that Cal was the perpetrator of that domestic violence.
Although statements in the affidavit in support of removal would support that Cal was the perpetrator of the domestic violence, the trial court could not consider those statements since they were not admitted into evidence. See E.W., 494 S.W.3d at 296-97.
TDFPS argues that, since Cal was involved in a CPS case involving another child, the trial court could have concluded that Cal's endangering conduct toward other children supported an endangerment finding in this case. However, the only evidence regarding that prior case is that Cal tested positive one time for illegal drugs and that he did not work his service plan in that case. There is no evidence that Cal's parental rights were terminated in that case, that Cal's conduct endangered the child in that case, or that he knowingly allowed the child in that case to remain in an endangering environment.
In addition, TDFPS argues that, since Cal failed to make contact with CPS and failed to request visitation, the trial court could have concluded that his lack of visitation emotionally endangered J.L.G.'s well-being, supporting termination under ground (E), citing In re R.M., No. 07-12-00412-CV, 2012 WL 6163100, at *4 (Tex. App.—Amarillo Dec. 11, 2012, no pet.) (mem. op.); In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh'g); and In re S.I.H., No. 02-11-00489-CV, 2012 WL 858643, at *6 (Tex. App.—Fort Worth Mar. 15, 2012, no pet.) (mem. op.). However, in each of those cases, additional factors supported termination under ground (E). In R.M., there was evidence of the parent's substantial history of using methamphetamine and crack cocaine, including during the pendency of the CPS case, along with a prolonged history of unemployment and financial instability. R.M., 2012 WL 6163100, at *4-5. In U.P., there was evidence that the father had supplied drugs to the mother while she was pregnant with the child, that he knew of her drug use, and that he failed to seek help for her and the child. This resulted in health problems for the child. U.P., 105 S.W.3d at 236. Further, there was evidence that the father sold drugs after the child's birth, resulting in his incarceration and absence from the child's life for more than twelve months. Id. In S.I.H., the court of appeals noted that there was evidence of neglect that caused the child physical and emotional problems. S.I.H., 2012 WL 858643 at *5. In addition, testimony showed that the mother left the child in the care of a person with psychotic issues, a substantial history of drug abuse, and several suicide attempts. Id. The evidence also showed that the mother was financially unstable. Id. Further, although the court of appeals noted that the mother failed to visit the child for several months, it pointed to expert testimony at trial regarding the impact those actions had on the child. Id. at *6.
In its temporary order following adversary hearing, the trial court did not order any visitation for Cal. Its subsequent orders reaffirmed this visitation order (i.e., no visitation).
By contrast, in this case, the trial court did not order any visitation for Cal in its temporary order following an adversary hearing. Its subsequent orders reaffirmed its order providing for no visitation for Cal. In fact, the evidence is that Cal was ordered not to visit J.L.G. Further, although Anderson testified that she mailed a service plan to Cal on two occasions, there is no evidence that he actually received it. Anderson testified that she did not make actual contact with Cal until one week before the final hearing. Thus, there is no evidence that Cal, who had no visitation rights under the trial court's orders, knew what he had to do in order to obtain visitation. Although Terri testified that Cal knew that J.L.G. was in CPS custody, there is no testimony regarding when he acquired this knowledge. Finally, unlike the cases cited by TDFPS, in this case, there is no evidence regarding Cal's financial resources, his employment history, or the stability of his home.
Even considering this evidence in the most favorable light to the judgment, we find that a reasonable fact-finder could not form a firm belief or conviction that Cal knowingly placed or knowingly allowed J.L.G to remain in conditions or surroundings which endangered his physical or emotional well-being. Further, we find that a reasonable fact-finder, based on this evidence, could not have formed a firm belief or conviction that Cal engaged in conduct or knowingly placed J.L.G. with persons who engaged in conduct which endangered J.L.G.'s physical or emotional well-being. Therefore, we find that the evidence is legally insufficient to support the trial court's finding under grounds (D) and (E).
(4) Evidence Was Legally Insufficient to Support Terminating Cal's Rights on Ground (N)
Parental rights may also be terminated if the child has been constructively abandoned by the parent. See TEX. FAM. CODE ANN. § 161.001(b)(1)(N). To show constructive abandonment, TDFPS must show (1) that the child has been in its conservatorship for not less than six months, (2) that it "has made reasonable efforts to return the child to the parent," (3) that "the parent has not regularly visited or maintained significant contact with the child," and (4) that "the parent has demonstrated an inability to provide the child with a safe environment." Id. TDFPS makes no argument on appeal that the evidence supports termination of Cal's parental rights under ground (N).
As we previously discussed, Cal had no visitation rights under the trial court's order. Further, there was no evidence that he received the CPS service plan, and no evidence that Cal knew what steps he must take to obtain visitation with the child. Also, although he was represented by appointed counsel during the proceedings, there is no evidence that Cal knew of this representation any earlier than one week before the final hearing. Finally, there was no evidence as to whether Cal has maintained other significant contact with the child. "A lack of evidence does not constitute clear and convincing evidence." E.N.C., 384 S.W.3d at 808. Under this record, the finding that Cal has not visited or maintained significant contact with J.L.G. is not supported by clear and convincing evidence.
Further, at trial, TDFPS introduced no evidence regarding Cal's financial resources, his employment history, his home environment, his parenting skills, or his ability or inability to care for J.L.G., other than Anderson's conclusory opinion that he had not shown any stability or ability to care for the child. Anderson offered no factual basis for her opinion. Further, although she testified that she had been to Cal's residence on several occasions attempting to contact him, she gave no testimony regarding the condition of the residence or of its occupants. Thus, the finding that Cal has demonstrated an inability to provide J.L.G. with a safe environment is not supported by clear and convincing evidence. See Earvin v. Dep't of Family & Protective Servs., 229 S.W.3d 345, 348 (Tex. App—Houston [1st Dist.] 2007, no pet.). We find that the evidence is legally insufficient to support termination of Cal's parental rights based on ground (N).
(5) Evidence Was Legally Insufficient to Support Terminating Cal's Rights on Ground (O)
To terminate parental rights pursuant to ground (O), TDFPS must show that (1) the child was removed under Chapter 262 of the Texas Family Code for abuse or neglect, (2) the child has been in the managing conservatorship for at least nine months, and (3) the parent "failed to comply with the provision of a court order that specifically established the actions necessary for the parent to obtain the return of the child." TEX. FAM. CODE ANN. § 161.001(b)(1)(O); E.W., 494 S.W.3d at 297-98.
Anderson testified that both parents were ordered by the court to complete service plans, that they received copies of the service plans, and that Cal had not completed anything on his. However, this testimony is not sufficient to establish that Cal failed to comply with a court order that specifically established the actions necessary to obtain the return of J.L.G. Rather, TDFPS was required to provide some evidence that the service plan was incorporated in a court order that specifically established the actions necessary to obtain J.L.G.'s return. In re D.N., 405 S.W.3d 863, 878 (Tex. App.—Amarillo 2013, no pet.) (citing In re C.L., 304 S.W.3d 512, 517 (Tex. App.—Waco 2009, no pet.)). Orders of the trial court and CPS's family service plan were not introduced into evidence. However, the trial court took judicial notice of its file, which included its orders and the unsigned family service plan for Cal. Therefore, we must look to the clerk's record to determine whether the evidence supports a finding that Cal failed to comply with the provisions of a court order that specifically established the actions necessary to obtain the return of J.L.G.
The record on appeal shows that only one order was entered by the trial court that specifically established the actions necessary to obtain the return of J.L.G. The temporary order following an adversary hearing, entered September 9, 2015, contained the following notice:
THE COURT FINDS AND HEREBY NOTIFIES THE PARENTS THAT EACH OF THE ACTIONS REQUIRED OF THEM BELOW ARE NECESSARY TO OBTAIN THE RETURN OF THE child, . . . .Thereafter, the order, which appears to be a standard, pre-printed order, purports to order both Terri and Cal to obtain a psychological evaluation and counseling; to complete parenting classes; to submit to drug and alcohol assessment, testing, and treatment; and to comply with the TDFPS service plan. However, before setting forth the requirements for Cal, the order also contains the trial court's handwritten notation stating that "no services are ordered for [Cal] as he has not been served." The record also reflects that Cal was not served with citation until almost three months later, on December 7, 2015. In addition, the record contains TDFPS's unsigned service plan for Cal, which was filed October 15, 2015, and the trial court's status hearing order, entered October 27, 2015, that adopts the service plan as an order of the court. However, neither the service plan nor the status hearing order specifically state that completion of the service plan is necessary for the return of J.L.G. Further, the status hearing order provides that "all previous orders issued by this Court shall continue in full force and effect subject to the following modifications: none." Thus, the status hearing order continued the prior order in which no services were ordered for Cal that were necessary for the return of J.L.G. The trial court's initial permanency hearing order, entered February 25, 2016, again adopts the service plan as an order of the court, but does not specifically state that compliance with the plan is necessary to obtain the return of J.L.G. The same is true of the trial court's permanency hearing order before final order, entered on September 26, 2016.
Thus, the record shows that, although Cal's service plan was adopted as an order of the trial court, it was not done so in an order that specifically established the actions necessary for Cal to obtain the return of J.L.G. Based on this record, we find that there is legally insufficient evidence to support the termination of Cal's parental rights under ground (O).
Since we have concluded that the evidence is legally insufficient to support the trial court's findings that Cal's parental rights should be terminated under any of grounds (D), (E), (N), or (O), we sustain Cal's sole point of error and reverse the trial court's judgment terminating Cal's parental rights.
Since we sustain Cal's point of error insofar as it challenges the trial court's findings regarding the statutory grounds for termination, we need not decide the best interest determination that Cal also challenged.
In addition to seeking termination of Terri's and Cal's parental rights, TDFPS requested and obtained permanent managing conservatorship of J.L.G. under the standard of Section 153.131 of the Texas Family Code. See TEX. FAM. CODE ANN. § 153.131 (West 2014). Since the elements and standard of proof necessary to obtain termination of parental rights differ from those necessary to obtain conservatorship under Section 153.131, and since the standard on review of termination orders differs from that of conservatorship orders, the Texas Supreme Court has held that a separate challenge on appeal is required for conservatorship orders under Section 153.131. In re J.A.J., 243 S.W.3d 611, 615-17 (Tex. 2007). Since neither Terri nor Cal has challenged TDFPS's conservatorship, our reversal of the trial court's order terminating Cal's parental rights does not affect the conservatorship appointment. See id. at 617.
We reverse that part of the trial court's judgment terminating Cal's parental rights. In all other respects, we affirm the trial court's judgment.
Josh R. Morriss III
Chief Justice Date Submitted: March 16, 2017
Date Decided: April 6, 2017